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Digitized  by  the  Internet  Archive 

in  2011  with  funding  from 

Princeton  Theological  Seminary  Library 


http://www.archive.org/details/lecturescorrecte02smit 


THE 


CORRECTED  AND  IMPROVED, 

WHICH 

HAVE  BEEN  DELIVERED  FOR  A  SERIES  OF  YEARS, 

IN  THE 

COLLEGE  OF  NEW-JERSEY; 

ON  THE  SUBJECTS  OF 

MORAL  AXB  POLITICAL  PHILOSOPHY. 

THE  FORMER  PART  EMBRACING, 

I.  The  general  principles  of  human  nature  considered  as  a  subject  of  moral  sciencei 

II.  The  principles  of  ethics,  or  the  moral  relations  and  duties  of  men. 

III.  The  principles  of  natural  theology. 

TV.  And  lastly,  those  of  economies,  or  family  relations,  as  preparatory  to  the  consideration  of 
the  relations  and  duties  of  civil  and  political  life. 

THE  LATTER  PART  EMBRACING, 

I.  The  rules  which  ought  to  regulate  the  conduct  of  men  towards  one  another  in  a  state  of 
civil  society,  and  the  means  of  enforcing  those  rules. 

II.  The  rules  and  principles  which  give  the  form  to  the  society  or  government  itself,  and 
which  direct  its  operations. 

III.  And  finally,  the  rules  which  should  govern  the  conduct  of  independent  governments  or 
states  to  one  another — the  whole  comprehending  those  general  principles  on  the  subjects  of 
jurisprudence,  polities,  and  public  law,  or  the  law  of  nature  and  nations,  with  which  every 
man  of  liberal  information  in  a  free  country  ought  to  be  acquainted. 

1 

BY  THE  REV.  SAMUEL  STANHOPE  SMITH,  D.  D.  L.  L.  D. 

IN  TWO  VOLUMES. 
VOLUME  II. 

TRENTON: 

PUBLISHED  BY   DANIEL  FENTON, 

FOR  THE  AUTHOR. 


JAMES  J.  WILSON,  PRINTER. 

1812. 


w^ 


X 

«;  • '  ■ 


DISTRICT  OF  NEW  JERSEY,  ss. 

BE  IT  REMEMBERED,  That  on  the  twenty-ninth  day  of  August,  in  the  thirty-seventh 
year  of  the  independence  of  the  United  States  of  America,  Samuel  Stanhope  Smith,  of  the  said 
district,  hath  deposited  in  this  office  the  title  of  a  book,  the  right  whereof  he  claims  as  author,  in 
the  words  following,  to  wit:  "The  Lectures,  corrected  and  improved,  which  have  been  de» 
livered  for  a  series  of  years  in  the  college  of  New-Jersey,  on  the  subjects  of  moral  and  political 
philosophy,  by  the  Rev.  Samuel  Stanhope  Smith,  D.  D.  L.  L.  D.  The  former  part  embracing, 
1st,  The  general  priuciplesof  human  nature  considered  as  a  subject  of  moral  science.  2d,  The 
principles  of  ethics,  or  the  moral  relations  and  duties  of  men.  3d.  The  principles  of  natural  the- 
ology. 4th,  And  lastly,  Those  of  economics,  or  family  relations,  as  preparatory  to  the  conside- 
ration of  the  relations  andduties  of  civil  and  political  life.  The  latter  part  embracing,  1st,  The 
rules  which  ought  to  regulate  the  conduct  of  men  towards  one  another  in  a  state  of  civil  society, 
and  the  means  or  eulorfing  tnose  rui„a.  2(L  The  n,)es  ^  principle  which  give  the  form  to 
the  society  or  government  itselt,ai«I  whicn  tureci  iu  upri-aauiui  °o,  j«-™j  finally,  The  rules 
which  should  govern  the  conduct  of  independent  governments  or  states  to  one  anuiha — the  whole 
comprehending  those  general  principles  on  the  subjects  of  jurisprudence,  politics,  and  public 
law,  or  the  law  of  nature  and  nations,  with  which  every  man  of  liberal  information  in  a  free 

country  ought  to  lie  acquainted" In  conformity  totheact  of  the  congress  of  the  United  States 

entitled  "  An  act  for  the  encouragement  of  learning,  by  securing  the  copies  of  maps,  charts,  and 
books,  to  the  authors  and  proprietors  of  such  copies,  during  the  times  therein  mentioned,"  and 
also  an  act  entitled  "  An  act  supplementary  to  an  act  entitled  an  act  for  the  encouragement  of 
learning,  by  securing  the  copies  of  maps,  charts,  and  books,  to  the  authors  and  proprietors  of 
such  copies,  during  the  timt  therein  mentioned,  and  extending  the  benefit  thereof  to  the  arts  of 
designing,  engraving  and  etching  historical  and  other  prints." 

ROBERT  BOGGS, 

Clerk  of  the  District  of  JV\  Jersey, 


LECTURES, 


LECTURE  XV. 

OF  NATURAL  THEOLOGY. 

(TOJNTEJNXS. 

Of  Natural  Theology,  wherein  it  consists,  and  its  con- 
nexion  with  the  science  of  morals — The  proofs  of  the 
divine  existence  divided  into  two  kinds,  the  scientific, 
and  popular — Mr  Hume's  idea  of  cause — Sketch  ofDr 
S.  Clarke's  demonstration  of  the  being  and  attributes  of 
God — The  popular  mode  of  reasoning  from  the  works 
of  nature  to  the  existence,  wisdom  and  power  of  its 
Author. — Jin  exhortation  to  study  natural  history  par- 
ticularly with  this  view.— .Proof  of  the  same  truth  from 
the  general  sentiments  of  mankind. — Proof,  from  the 
absurdity  of  the  reasons  invented  to  account  for  the 
origin  of  things  independent  of  God. — Chance  and  dis- 
order  ignordntly  ascribed  to  the  works  of  nature. — The 
attributes  of  the  Deity — First,  of  the  natural  attributes, 
spirituality,  unity,  wisdom,  power,  eternity,  omnipre- 
sence— Second,  of  his  moral  attributes,  holiness,  good- 
vol.  ii.  jb 


10 

ness,  justice. — Some  ohjections  to  the  divine  goodness 
on  the  score  of  the  evils  which  exist  in  the  world  con- 
sidered. — Of  the  evils  which  attend  our  entrance  into 
the  world,  and  departure  from  it. — Of  the  justice  of 
God,  distributive,  and  vindictive. 

NATURAL  Theology,  which  consists  in  the  knowl- 
edge of  those  truths  which  maybe  discovered  by  the  ex- 
ercise of  human  reason  alone,  concerning  the  being  and 
attributes  of  find,  is  intimately  connected  with  the  sci- 
ence of  duty  and  morals.  Among  the  strongest  percep- 
tions of  our  nature  are  those  which  indicate  to  us  amoral 
law  to  which  we  are  subject,  and  render  us  susceptible  of 
moral  obligation.  From  that  sense  of  morality,  which 
has  been  already  explained,  results  a  profound  conviction 
of  the  existence  of  this  law,  and  of  a  Supreme  Law- 
giver Avho  imposes  obedience  to  it  by  the  authority  of  our 
own  internal  sentiments,  and  by  the  reference  whieh  they 
bear  to  his  righteous  judgment  which  they  teaeh  us  to  ap- 
prehend. As  reason  brings  from  every  survey  of  the  works 
of  nature,  irresistible  demonstration  of  the  existence  of  a 
Deity,  infinitely  wise,  powerful,  and  benevolent ;  con- 
science draws  from  our  own  internal  feelings,  the  deep 
persuasion  of  his  being  a  most  holy  and  righteous  judge 
of  moral  conduct.  The  conviction  of  these  truths  must 
ever  possess  a  useful  influence  on  the  morals  of  mankind. 
The  informations  of  reason,  or  the  restraints  of  con 


11 

science,  unsupported  by  this  principle,  would  impose  too 
feeble  a  check  on  the  force  of  irregular  propensities,  or 
the  impulse  of  unlawful  passions.  A  vicious  man,  ac- 
countable  only  to  himself,  would  soon  learn  to  overbear 
the  remonstrances  of  his  own  mind.  For  although  an 
atheist,  educated  in  the  midst  of  a  religious  people,  may 
be  preserved  within  the  bounds  of  a  decent  morality,  by 
respect  for  himself,  or  a  prudent  deference  to  the  opinion 
of  the  world ;  yet  if  the  belief  of  the  existence  of  God 
were  eradicated  from  the  public  mind,  the  mass  of  the 
people  would  esteem  secrecy  alone  to  be  a  sufficient  justi- 
fication of  any  action  dictated  by  inclination.  That  use- 
ful influence  which  public  opinion  now  creates  in  favor  of 
virtuous  manners,  would  on  the  prevalence  of  a  general 
atheism  cease  to  exist,  and  the  bands  of  society,  which 
are  effectually  maintained  only  by  the  public  morals, 
would  hasten  to  be  dissolved. 

Natural  theology,  therefore,  brings  to  view  the  most 
powerful  sanction  of  the  moral  law.  It  renders  the  law 
itself  more  clear  by  discovering  the  source  from  which 
it  emanates  : — inasmuch  as  the  human  mind,  when  sensi- 
bly placing  itself  in  the  divine  presence,  becomes  more 
susceptible  of  the  impressions  of  truth, — more  ready  to 
admit  its  evidence,  and  more  apprehensive  of  being  mis- 
led by  the  sophistries   of  error The  theory  of  duty, 

therefore,  is  naturally  conjoined  with  that  science  which 


12 

js  employed  in  demonstrating  the  existence,  and  unfold- 
ing the  perfections  of  the  divine  and  infinite  mind. 

The  proofs  of  the  being  of  God  have  usually  been  de- 
rived from  two  sources — the  necessary  nature  of  our 
ideas — and  the  structure  of  the  universe.  The  one  has 
been  denominated  the  scientific,  the  other  the  popular 
mode  of  proof; — or,  in  the  language  of  the  schools,  rea- 
soning a  priori,  and  a  posteriori.  The  former  is  reason- 
ing from  the  cause  to  the  effect,  the  latter,  from  the  ef- 
fect to  the  cause.  Both  these  modes  of  proof  rest  on  one 
common  principle,  or  necessary  idea,— .that  every  effect, 
or  every  thing  which  begins  to  be  must  have  a  cause  of 
its  existence.  It  was  one  of  Mr  Hume's  metaphisical  pe- 
culiarities, to  deny  the  idea  of  causality ;  maintaining, 
that,  in  contemplating  the  production  of  any  effect,  we 
have  no  other  notion  than  of  one  event  succeeding  another. 
This  position,  which  was  intended  to  destroy  our  belief  in 
creation,  will  find  its  refutation  in  each  man's  own  clear 
and  natural  perceptions.  Can  any  person  declare  that  his 
ideas  of  succession,  and  of  cause  are  precisely  the  same  ? 
It  may  be  difficult,  or  impossible  to  give  an  accurate  defi- 
nition of  the  difference,  because  they  are  both  ideas  of  the 
simplest  kind,  but  may  be  perceived  by  the  plainest  un- 
derstanding to  be  perfectly  distinct.*    Admitting,  then, 

*  The  idea  of  cause  has,  not  improbably,  been  derived  ori- 
ginally from  some  active  operation  of  our  own  will  upon  some 


la 

the  reality  of  the  idea  of  cause,  and  the  truth  of  the  prin- 
ciple, that  whatever  hegins  to  he  must  have  a  cause,  the 
necessary  consequence  is,  either,  that  the  universe  con- 
sists of  an  eternal  succession  of  causes  dependent  one  upon 
another,  or  we  must  look  for  its  existence  in  some  first 
cause,  eternal,  unproduced,  the  source  of  all  motion  and 
power  in  the  operations  of  nature,  the  cause  of  whose 
being  is  to  be  found  only  in  itself,  and  the  necessity  of  its 
own  nature.  The  idea  of  an  eternal  succession  of  events, 
each  frail  and  imperfect,  and  all  dependent  one  upon 
another,  involves  too  evident  an  absurdity  to  be  admitted 
by  philosophy. 

We  are  obliged,  therefore,  to  adopt  the  only  alterna- 
tive that  remains, — the  existence  of  a  first  cause,  origin- 
al, and  independent,  from  which  all  things  else  have 
been  derived.  If  we  ask  whence  then  exists  this  first 
cause?  Being  original  and  underived,  we  can  find  no 
reason  for  its  existence  but  in  the  necessity  of  its  own 
nature.  A  being  existing  by  necessity  of  nature,  can 
never  begin  to  be;  it  must  be  eternal.  For  the  same 
reason,  it  must  be  unchangeable ;  for  if  any  change  could 

part  of  our  muscular  system,  producing  an  exertion  of  force  or 
strength  which  is  immediately  followed  by  an  effect  evidently 
occasioned  by  that  act.  I  by  no  means,  however,  give  this  as  an 
adequate  definition  or  account  of  the  idea  of  cause,  but  only  sug- 
gest it  as  a  probable  occasion  of  originally  exciting  the  idea  in. 
our  minds. 


14 

take  place,  there  must  be  something  in  it  which  was  not 
necessary.  Infinity  must  be  equally  predicable  of  the 
same  being;  for  how  should  it  be  limited  when  nothing 
previous  existed  to  bound  it  ?  or  how  should  necessary 
existence  be  confined  to  a  circumscribed  space?  The 
unity  of  the  divine  nature  is  no  less  a  certain  conse- 
quence of  this  principle.  Two  equally  necessary  and 
infinite  beings  could  serve  no  useful  purpose  that  could 
not  be  fulfilled  by  one. — There  being  no  reason,  there- 
fore, for  the  existence  of  a  second,  the  idea,  on  all  the 
rules  of  reasoning  in  sound  philosophy,  ought  to  be 
rejected.  Besides,  two  beings  equally  infinite,  must  oc- 
cupy the  same  space,* — being  equally  the  cause  of  all 
things  which  exist,  they  must  possess  the  same  perfec- 
tion; they  must  be,  to  every  purpose  of  existence,  the 
same  being.  This  first  and  sole  cause  of  all  things  in  the 
universe  must  also  be  almighty ;  for  whatever  can  exist, 
can  exist  only  by  him.  And,  finally,  he  must  be  all-wise, 
as  knowing  the  natures  and  powers  of  all  things  possible, 
for  nothing  is  possible  but  by  him,  and  every  thing  is 
possible  that  he  wills. 

This  is  a  very  brief  and  partial  sketch  of  the  scientific 
mode  of  reasoning,  or  reasoning  a  'priori  on  this  subject. 
The  most  profound  and  masterly  example  of  it  which 

*  See  three  letters  of  Dr  Clarke  on  the  relations  of  the 
Deity  to  space,  and  duration. 


15 

exists  perhaps  in  any  language,  you  will  find  in  Dr 
Samuel  Clarke's  demonstration  of  the  being  and  attri- 
butes of  God.  But  I  confess  these  subtle  arguments  of  a 
rery  refined  speculation,  are  little  calculated  to  produce 
any  profound  and  permanent  eonviction  on  the  mind. 
The  extreme  abstraction  of  the  ideas,  although  they  do 
great  credit  to  the  ingenuity  of  that  celebrated  author, 
can  be  comprehended  only  by  a  few  reflecting  men ;  and 
the  most  speculative  philosopher  finds  the  effort  to  grasp 
them  tend  very  much  to  exhaust  the  sensibility  of  the 
heart,  and  weaken  their  practical  impression. 

The  second,  or  popular  mode  of  reasoning,  from  the 
effect  to  the  cause,  is  more  simple  and  obvious.  It  is  a 
species  of  argumentation  which  naturally  offers  itself  to 
every  man  as  soon  as  he  opens  his  eyes  upon  the  face  of 
the  world.  It  is  a  kind  of  evidence  that  reaches  the 
simplest  understanding,  and  becomes  more  luminous  and 
interesting  in  proportion  as  Ave  extend  our  observation 
and  enquiries  into  the  system  of  nature.  When  we 
behold  its  order,  variety  and  beauty,  the  proportion  and 
correspondence  of  all  its  parts,  the  evident  demonstra- 
tions of  wisdom  and  design,  especially  in  the  animal  and 
vegetable  worlds,  in  the  structure  of  the  earth,  in  the 
planetary  system,  and,  as  far  as  we  can  judge,  through- 
out the  universe,  can  we  forbear  to  acknowledge  a  wise 
and  intelligent  cause  which  has  planned  and  arranged 


16 

the  whole  ?  an  omnipotent  cause  which  has  given  exist- 
ence to  this  immense  and  various  structure  ?  and  an  in- 
finite providence  which  every  where  presides  over  its 
operations?  The  details  of  this  argument  are  too  ex- 
tensive to  he  minutely  pursued  in  such  an  elementary 
system  of  morals  as  that  in  which  we  are  at  present 
engaged.  They  are,  perhaps,  not  necessary  to  convince 
you  of  that  first  of  truths  of  which  you  are  already 
deeply  persuaded,  and  that  meets  you  at  every  glance 
which  you  cast  over  the  surface  of  nature.  Yet,  in  your 
private  studies,  I  cannot  too  strongly  recommend  it  to 
you  diligently  to  pursue  your  researches  into  the  natural 
history  of  the  universe,  expressly  with  this  view  to 
assemble  before  the  mind  the  multiplied  evidence  which 
it  contains  in  every  part,  of  the  existence,  and  universal 
operation  of  a  most  wise,  beneficent,  and  almighty 
power  which  pervades,  and  presides  over  the  whole.  The 
beauty,  variety,  and  interesting  nature  of  the  study  will 
abundantly  reward  your  pains.  But  it  will  further  be 
productive  of  a  double  advantage ;  in  the  first  place,  by 
giving  additional  confirmation  to  a  principle  of  the  high- 
est importance  to  individual  virtue,  and  to  the  happiness 
of  society,  which  many  occasions  in  the  intercourse  of 
life,  the  momentary  prevalence  of  irregular  passions* 
and  at  length  even  the  fallacious  subtlety  of  sceptical 
speculation,  might  frequently  tend  to  impair :  and  in  the 


17 

next  place  by  producing  a  more  profound  and  habitual 
impression  of  that  truth  on  the  heart.  We  may  live  in 
the  midst  of  the  most  demonstrative  evidences  of  it, 
while,  at  the  same  time,  the  attention  of  the  mind  may, 
from  a  variety  of  causes,  be  little  attracted  to  its  con- 
sideration. The  evidence  which  now  and  then  glances 
on  the  understanding,  may  not  be  affected  by  any  doubt ; 
but  it  is  too  superficial  and  transient  to  make  any  useful 
impression.  It  is  only  when  it  is  often  presented  to  view 
when  the  thoughts  are  frequently  recalled  to  its  con- 
sideration, when  they  ruminate  upon  it,  that  it  becomes 
mixed  and  blended  with  the  habitual  contemplations  of 
the  mind,  and  the  deep  persuasion  is  lodged  there  as  a 
constant  spring  of  pure  and  rational  devotion,  and  the 
most  powerful  motive  of  virtuous  action.  It  is  with  this 
intention  that  I  would  recommend  to  you  an  extensive 
study  of  natural  history  as  the  surest  basis,  when  pru- 
dently investigated,  of  natural  theology.  It  is  a  study, 
likewise,  which  peculiarly  contributes  to  purify,  exalt, 
and  delight  the  mind  ,*  and  along  with  the  charming  en- 
thusiasm of  piety,  to  strengthen  the  most  solid  founda- 
tions of  virtue,  while,  to  use  an  expression  of  Malbranchc, 
"  it  sees  all  things  in  God,  and  God  in  all  things."  Or 
in  the  more  beautiful  and  picturesque  language  of  the 
English  poet — while  in  every  part  of  nature  it  continu- 
ally contemplates  him 

vol.  ii.  G 


IS 

Who  chang'd  thro'  all,  is  yet  in  all  the  same, 
Great  in  the  earth  as  in  th'  ethereal  frame, 
Warms  in  the  sun,  refreshes  in  the  breeze, 
Glows  in  the  stars,  and  blossoms  in  the  trees ; 
Lives  thro'  all  life,  extends  thro'  all  extent, 
Spreads  undivided,  operates  unspent. 

Pope's  Essay  on  Man,  e/i.  1. 1.  267 — 274. 

This  argument  is  admirably  illustrated  by  the  famous 
Genevan  philosopher  Bonnet,  and  bv  those  very  respecta- 
ble English  writers  Derham  and  Ray.  But,  perhaps,  no 
author  has  treated  it  with  more  closeness,  perspicuity, 
and  irresistible  evidence  than  Dr  Paley  in  his  treatise  on 
natural  theology.  You  see  there  that  mechanical  con- 
trivance, that  correspondence  of  parts,  that  adaptation  of 
means  to  their  respective  ends  through  all  the  works  of 
nature,  which  are  the  most  unequivocal  indications  of 
wisdom  and  design,  as  well  as  of  power  and  goodness  in 
its  author.  i(  Final  causes,  says  a  very  judicious  writer, 
may  be  considered  as  the  language  in  which  the  existence 
of  God  is  revealed  to  man.  In  this  language  the  sign  is 
natural,  and  the  interpretation  instinctive."* 

Another  argument  to  the  same  end  which  may  be  con- 
sidered, either  as  different  in  its  nature  from  the  preced- 
ing, or  as  only  shewing  in  a  newr  and  strong  light  its  evi- 
dence and  certainty,  is  derived  from  the  universal  con 

*  Ferguson's  institutes,  part  3d.  chap.  1,  sect.  2d. 


19 

eurrence  of  all  nations  in  this  important  principle,  the 
existence  of  God. 

The  general  sentiments  of  mankind  point  to  truth. 
They  are  commonly  intuitive,  or  necessary  conceptions 
arising  immediately  from  the  bare  inspection  of  nature  ; 
or  forcing  their  evidence  upon  the  mind,  like  the  first 
truths  of  science,  simply  by  the  comparison  of  our  own 
ideas.  The  concurrence  of  all  nations,  therefore,  in  the 
belief  of  the  being  of  God  is  a  proof  either,  that  it  is  a 
native  sentiment  of  the  human  heart  resulting  from  the 
constitution  of  our  nature,  resting  on  the  same  foundation, 
and  entitled  to  the  same  credit  with  any  other  of  our  in- 
ternal sensations  ; — or,  that  it  is  a  conclusion  so  clearly 
and  necessarily  flowing  from  the  appearances  of  nature  as 
to  be  obvious  equally  to  the  wisest  and  most  uncultivated 
mind  ;  the  rapidity  of  the  induction  giving  it  the  appear- 
ance of  an  instinctive  principle. 

To  this  proof  it  is  not  a  sufficient  objection,  that  many- 
nations  have  acknowledged  a  multiplicity  of  gods,  and 
that,  in  all  nations,  the  multitude  have  entertained  un- 
worthy conceptions  of  the  divine  nature The  natural 

sentiments  of  the  human  mind  may  be  corrupted ;  or, 
being  left  in  their  original  and  uncultivated  state,  may  be 
liable  to  many  errors  through  ignorance.  The  principles 
of  taste,  notwithstanding  their  acknowledged  foundation 


20 

in  nature,  may,  in  the  same  manner,  be  perverted  by  de- 
fective or  erroneous  culture  ;  yet  their  error,  or  corrup- 
tion, instead  of  demonstrating  that  there  are  no  such  prin- 
ciples, is,  on  the  other  hand,  a  proof  of  their  existence. 
Many  nations,  misled  by  the  analogy  of  human  govern- 
ments, conceiving  that  the  divine  administration  might  be 
conducted  by  subordinate  agents,  by  a  very  natural  in- 
firmity of  the  human  mind,  elevated  each  local  and  ima- 
ginary divinity  to  the  throne  of  divine  worship.  But  all 
mankind  have  ever  acknowledged  one  Supreme  Deity  : 
and  the  multitude  of  subordinate  officers,  if  they  may  be 
called  such,  which  error  has  attached  to  him  in  his  gov- 
ernment, does  not  destroy  the  evidence  of  the  principal 
and  original  sentiment,  that  God  exists.  Our  object  at 
present  is  to  establish  this  single  truth.  And  this  truth  is 
not  impaired  by  diversity  of  opinion  with  regard  to  the 
mode  of  hi?  administration,  or  the  nature  of  his  perfec- 
tions. These  ideas  requiring  greater  precision  of  thought, 
and  greater  compass  of  reasoning,  one  man,  or  one  nation, 
according  to  the  advances  they  have  made  in  the  cultiva- 
tion of  science,  may  reasonably  be  supposed  to  have 
formed  more  just,  or  more  inadequate  conceptions  of 
them,  than  another. 

The  truth  of  the  divine  existence  is  confirmed,  if  such 
primary  and  palpable  truths  can  receive  additional  con- 
firmation, by  the  absurdity  of  the  causes  to  which  atheists 


21 

Lave  been  obliged  to  resort  in  order  to  account  for  the 
origin  of  things.  One  of  their  first  principles  is  that 
matter  is  eternal,  and  though  senseless  and  inert,  contains 
the  essence  of  all  order  and  motion.  Another,  that  the  in- 
telligence which  evidently  reigns  in  the  universe,  is  the 
result  of  material  organization.  And  another  still,  not 
less  extraordinary  than  either  of  the  preceding,  that,  from 
the  accidental  collision  of  atoms,  have  been  formed 
globes  that,  from  some  interior  impulse,  have  thrown 
themselves  into  orbits  constructed  with  the  most  perfect 
mathematical  exactness,  and  governed  by  laws  which  en- 
sure undeviating  constancy  to  their  movements.  From 
the  same  accidental  collision  roots  and  seeds  have  been 
generated,  whence  the  whole  vegetable  world  has  been 
evolved,  and  yearly  reproduced.  At  this  age  of  philoso- 
phy, one  would  think  that  such  principles  must  carry 
their  own  refutation  in  the  very  terms  of  their  statement. 
Look  on  any  mass,  or  congeries  of  matter,  and  let  the 
plainest,  or  most  ingenious  understanding  decide  if  any 
arrangement  of  its  atoms,  according  to  any  known  laws  of 
material  action,  could  sublimate  it,  above  all  could  enable 
it  to  sublimate  itself  into  sensation  and  reason?  Or  is  it 
possible  that,  if  one  lucky  cast  or  collision  among  in  Unite 
milions,  should  have  formed  an  animal  or  vegetable,  it 
should  have  been  so  framed  as  to  be  capable  of  throwing 
from  itself  continually  a  similar  assemblage  of  organized 


atoms,  "while  not  another  extraneous  cast  of  the  same  kind 
should  ever  succeed  in  forming  a  new  body  ? 

But  if  an  atheist  ask  us  why,  since  we  admit  the  ex- 
istence of  a  wise  intelligent  cause  only  to  exclude  disor- 
der and  chance  from  the  world,  are  there  so  many  un- 
seemly examples  of  both  in  the  essential  structure  of 
things,  and  in  the  revolutions  of  what  we  call  providence  ? 
It  is,  as  I  conceive,  a  sufficient  answer,  to  deny  the  ex- 
istence of  either,  and  to  challenge  an  antagonist  to  pro- 
duce his  instance. — For  what  is  chance  ?  Only  a  name 
to  cover  our  ignorance  of  the  cause  of  any  event.  Nothing 
can  happen  by  accident  in  the  government  of  an  infinitely 
wise  being.  All  events  depend  upon  a  certain  concatena- 
tion of  causes.  The  cast  of  a  die  is  as  certainly  governed 
by  the  laws  of  matter  and  motion  as  the  greater  move- 
ments of  the  planets.  What  is  disorder  in  the  works  of 
nature  ?  A  name  which  our  weakness  and  imperfection 
presumptuously  imputes  to  the  wisest  designs  of  Heaven. 
To  judge  perfectly  of  the  order  and  regularity  of  the 
universe  we  ought  to  be  acquainted  with  the  structure  of 
the  whole  system,  and  the  particular  end  of  every  move- 
ment. Without  this  knowledge,  imaginary  irregularities 
will  ever  exist ;  but  they  will  exist  only  in  the  imperfec- 
tion of  our  own  understanding.  To  the  eye  of  ignorance 
what  is  beyond  its  own  ken  will  look  like  confusion. — 
This  is  certain  with  regard  to  the  works  of  nature,  that 


2.3 

in  proportion  as  her  laws  have  been  more  clearly  de- 
veloped, and  her  operations  more  distinctly  understood, 
many  of  those  phenomena  which  formerly  were  esteemed 
to  he  irregularities  are  now  discovered  to  be  governed  by 
the  most  wise,  certain,  and  permanent  laws.  Even  those 
stellar  deviations,  which  were  once  thought  to  indicate 
the  mutual  approach  of  their  spheres,  and  to  point  to 
some  period  of  ultimate  destruction,  have  been  discovered 
by  an  illustrious  astromomer*  to  have  a  relation  to  one 
or  more  great  centers  of  motion  indicated  by  their  ap- 
proximations, and  recessions,  by  which  according  to  the 
unvarying  laws  of  central  forces,  they  only  the  more  cer- 
tainly provide  for  the  perpetuity  of  the  universe.— One 
conclusion  will  obtrude  itself  on  every  reflecting  mind: 
that,  since  the  greatest  portion  of  the  works  of  nature, 
contain,  even  to  our  imperfect  reason,  the  most  obvious 
indications  of  intelligence,  design,  and  goodness,  if  there 
are  any  parts  which  we  are  unable  to  interpret  in  perfect 
coincidence  with  the  general  system,  this  ought  to  be  as- 
cribed solely  to  the  narrow  sphere  to  which  our  intellec- 
tual vision  is  circumscribed.  If  a  plain  but  intelligent 
man  were  admitted  to  the  magazine  of  a  skilful  mechani- 
cian in  which  he  was  witness  to  the  most  admirable  proofs 
of  the  artist's  intelligence  and  skill,  what  could  he  con- 
clude on  inspecting  a  more  complicated  machine  the  in- 

*  La  Place. 


2i 

tricaey  of  which  he  could  not  possibly  comprehend,  but 
that  the  seeming  confusion  which  appeared  to  his  senses, 
was  attributable  only  to  the  imperfection  of  his  own  ideas  ? 
He  could  not  doubt  but  that  the  same  wisdom  pervaded  all 
the  works  of  the  same  author. 

It  has  been  frequently  and  justly  remarked  that  the 
universe  is  governed  by  general  and  constant  laws  which 
never  change  their  operation  according  to  the  desires  of 
men.  or  the  convenience  of  particular  parts  of  the  system, 
which  sometimes  appear  to  be  productive  of  accidental 
and  partial  ills.  A  tempest  here,  a  drought  there,  a  con- 
tagion, or  an  earthquake,  may  involve  individuals  in  dis- 
tress— but  the  fixed  and  unvarying  laws  of  the  physical 
world  are  among  the  greatest  blessings  to  mankind. 
Among  other  benefits,  they  lay  a  foundation  for  the  ex- 
istence of  the  most  useful  sciences,  which  could  have  no 
principles  on  which  to  rest  in  a  providence  of  expedients 
and  accommodations  to  individual  convenience.  They 
serve  to  awaken  enquiry,  to  exercise  ingenuity,  to  encour- 
age industry,  to  afford  principles  on  which  to  ground  a 
prudent  foresight  and  precaution,  and  to  promote  the  ex- 
ercise of  all  the  virtues  which  are  assisted  by  the  stability 
of  nature.  For  a  clear  and  luminous  illustration  of  the 
utility  of  general  laws,  and  for  a  judicious  explanation  and 
justification  of  the  apparent  and  partial  ills  which  result 


25 

from  them,  you  will  again  have  peculiar  satisfaction  in 
consulting  Dr  Paley's  work  on  natural  theology. 

I  proceed  next  to  consider  the  attributes  of  the  Deity 
more  distinctly,  or  separately. 

The  divine  attributes  will  not  require  an  extensive  il- 
lustration ;  for,  when  once  his  existence  is  acknowledged, 
they  recommend  themselves  so  obviously  to  the  common 
sense  of  mankind  as  hardly  to  admit  of  any  controversy  : 
except  with  regard  to  those  natural  events  which,  in  their 
first  aspect,  seem  contrary  to  our  apprehensions  of  his  in- 
finite goodness.  These  will  of  course  require  some  addi- 
tional considerations,  after  having  proposed  a  general 
theory  of  the  perfections  of  the  Supreme  Mind,  to  solve 
the  difficulties  which  may  occur  on  this  subject  to  the  re- 
flections of  a  pious  theist. 

The  attributes  of  God,  then,  may  be  arranged  under 
two  heads — the  natural  and  the  moral. — In  the  former  are 
comprehended  his  spirituality,  unity,  eternity,  omnipres- 
ence, power,  and  wisdom  $— under  the  latter,  his  holiness, 
justice  and  goodness. 

The  spirituality  of  the  divine  nature,  is  a  property 

opposed  to  every  form  and  refinement  of  matter ;  and 

may  be  regarded  as  distinguishing  the  essence  of  the 

Supreme  Mind  from  that  fine  but  powerful  influence,  the 
tol.  ii.  » 


26 

result  of  the  material  organization  of  the  universe,  which 
some  philosophers  have  substituted  in  the  room  of  Deity, 
and  made  the  cause  of  a  universal  necessity,  or  fate.  It 
is  opposed,  likewise,  to  the  opinion  of  those  who  have 
held  the  Deity  to  be  the  soul  of  the  world ;  that  is,  a 
certain  power,  which,  although  intelligent,  is  still  only  a 
refinement  of  matter,  a  kind  of  spirit,  or  gas  thrown  off 
from  the  infinite  system  of  its  motions,  or  its  original 
fermentations. 

All  just  philosophy  has  considered  matter  as  essential- 
ly inert,  and  incapable  of  beginning  motion.  Spirit,  as 
we  learn  from  our  own  experience,  possesses  a  self- 
motive  power,  and  the  power  of  giving  motion  to  other 
things.  The  existence,  therefore,  and  the  movements  of 
the  universe,  are  proofs  of  an  original  spirit  who  formed 
it,  and  gave  it  that  impulse,  and  that  system  of  combined 
motion  by  which  its  order  is  still  preserved. 

The  only  knowledge  which  we  have  of  spirit  is  de- 
rived from  reflection  on  our  own  minds,  the  essence  of 
which  we  conceive  to  lie  in  thought,  and  volition.  But 
it  would  be  impious  to  imagine  that  we  can  thence  form 
any  adequate  conception  of  the  Divine  and  Infinite  Spirit 
from  whom  all  things  proceed.  By  this  term,  therefore, 
applied  to  the  Deity  we  can  mean  only  to  express  a  sub- 


27 

stance  wholly  different  from  matter,   simple,   uncon> 
pounded,  essentially  active,  and  intelligent. 

The  unity  of  the  Divine  Nature  is  deducihle  from  this 
reflection,  that  we  see  evident  proofs  of  the  existence  of 
one  God,  and  we  see  no  evidence  of  more  than  one.  It  is 
contrary,  therefore,  to  every  principle  of  just  reasoning 
to  admit  a  plurality.  This  conclusion  is  strengthened  by 
that  unity  of  design  apparent  in  all  the  parts  of  nature. 
It  indicates  one  author,  one  purpose,  one  end.  How  far 
he  may  commit  the  government  of  particular  districts  of 
the  universe  to  subordinate  agents,  in  order  to  employ 
their  activity,  and  exercise  their  virtues,  we  have  no 
grounds  on  which  we  can  form  a  rational  judgment. 
Even  conjecture,  therefore,  ought  to  be  silent  concern- 
ing it,  lest  we  should  unawares  awaken  a  degrading 
spirit  of  superstition.  On  subjects  so  remote  from  the 
sphere  of  human  intellect  and  observation,  in  no  depart- 
ment of  science  has  conjecture  or  hypothesis  ever  led 
philosophy  one  step  nearer  to  truth.  It  is  even  doubtful 
if  the  erring  lights  of  false  science  do  not  lead  the  mind 
farther  astray  than  the  torpid  dulness  of  absolute 
ignorance. 

Of  the  almighty  power,  and  infinite  wisdom  of  tlie 
Deity  there  can  exist  no  Aubt  in  the  minds  of  those 
who  acknowledge  his  being.   No  more  can  we  doubt  of 


2S 

his  eternal  existence,  and  his  universal  presence,  al- 
though we  are  not  able  to  form  distinct  and  definite  ideas 
concerning  his  relations  to  infinite  duration  and  space. 
I  shall,  therefore,  not  consume  your  time  in  attempting 
to  solve  the  many  abstruse,  and  probably  useless,  and,  to 
human  intellect,  inexplicable  questions,  which  have  been 
raised  on  these  subjects  by  ingenious  men : but  pro- 
ceed to  consider  his  moral  attributes,  holiness,  goodness 
and  justice. 

Holiness  is  a  term  used  chiefly  by  divines,  and  bor- 
rowed from  the  sacred  scriptures,  to  express  the  purity 
of  the  divine  nature,  and  its  infinite  distance  from  all 
moral  imperfection.  It  is  perhaps  the  best  and  strongest 
word  in  our  language  to  convey  the  idea  of  his  unchange- 
able love  of  the  eternal  and  essential  rectitude  of  that 
moral  law  which  he  has  prescribed  to  his  rational 
creatures,  whose  outlines  he  has  traced  upon  the  human 
conscience,  but  the  perfect  rule  of  which  is  to  be  found 
only  in  his  revealed  word.  And  it  seems  further  to  carry 
in  its  meaning,  not  only  a  pure  and  immutable  love  of 
rectitude,  but  an  infinite  abhorrence  of  vice ;  that  is,  of 
the  omission  or  violation  of  the  duties  of  the  moral  law. 
But,  besides  this  peculiar  meaning  of  the  term  as  ex- 
pressing a  single  attribute  of  the  Divine  Mind,  it  is 
often  used  in  a  more  comprenensive  sense,  to  express  the 


29 

aggregate,  and  the  most  complete  idea  of  all  bis  moral 
perfections. 

By  the  attribute  of  goodness  is  meant  to  be  expressed 
the  disposition,  or  tendency  of  the  divine  nature  to  im- 
part happiness  to  the  creatures  he  lias  formed,  in  a  way 
accommodated  to  their  respective  states  of  being.  This 
attribute  we  ascribe  to  the  Deity  from  the  tendencies 
to  benevolent  affection  which  he  has  implanted  in  the 
human  breast; — and  from  that  order,  harmony,  and 
beauty  which  exist  in  the  whole  structure  of  the  uni- 
verse, and  which  so  naturally  and  strongly  associate 
themselves  with  the  ideas  of  beneficence  in  their  author, 
by  the  happiness  they  create  in  those  who  contemplate 
them.  It  is  farther  confirmed  by  the  existence  of  so 
many  tribes  of  creatures  capable  in  a  high  degree  of 
pleasurable  sensation,  and  actually  enjoying  it  in  different 
ways.  All  these  facts  contribute  to  impress  an  irresisti- 
ble conviction  of  the  benevolence  of  the  Creator.  Whea 
we  contemplate  an  individual  animal,  what  an  immense 
complexity  of  parts  do  we  observe  combined  in  one 
system,  all  contributing  to  the  preservation  and  enjoy- 
ment of  the  creature,  which  manifestly  indicate  the  will 
and  intention  of  the  author;  and  shew  the  pains  and  con- 
trivance, if  these  terms  may  be  applied  to  the  Deity,  which 
he  has  used  to  render  that  animal  comfortable  and  happy. 
But,  when  we  behold  creation  filled  with  innumerable 


so 

species  of  being,  and,  under  each  species,  innumerable  in* 
dividuals,  down  to  the  minutest  insect  tribes,  in  which  we 
severally  discern  the  same  multiplicity  of  organs,  and 
the  same  systematic  combination,  and  subserviency  to 
the  purposes  of  enjoyment,  how  does  the  evidence  of  the 
divine  benignity  and  goodness  rise  in  our  view !  The  air, 
the  earth,  the  sea  are  full  of  animated  and  happy  beings. 
Men  often  overlook  these  examples  of  benevolent  design, 
sometimes  from  not  perceiving  the  immediate  utility  of 
the  creatures  in  the  system  of  creation,  and  sometimes 
from  their  extreme  minuteness.  But  the  minutest  insect 
is  equally  with  the  largest  or  most  rational  animal, 
susceptible  of  the  most  exquisite  sensations  of  happy 
existence.   And  in  the  eye  of  the  infinite  being, 

Who  sees  with  equal  eye,  as  God  of  all, 
A  hero  perish,  or  a  sparrow  fall, 

there  is  much  less  difference  between  an  insect,  and  a 
man,  than  our  vanity  inclines  us  to  conceive. 

It  is  well  remarked,  by  many  ingenious  writers,  that 
the  beniguity  of  the  Deity  is  visible  not  only  in  the 
structure  of  the  animal  system  subserving  so  admirably 
the  purposes  of  preservation,  comfort,  and  defence;  but 
in  annexing  such  pleasant  sensations,  beyond  what  mere 
necessity  would  have  required,  to  the  exercise  of  the 
different  faculties  and  powers  of  animal  nature.   Hunger 


31 

alone  might  have  prompted  it  to  eat,  an  operation  which 
would  have  been  sufficient  for  the  sustenance  of  life. 
But  the  Creator  has  added  to  its  food  a  relish,  which 
seems  to  have  had  no  other  purpose  but  to  increase  the 
pleasure  of  existence.  The  objects  around  us  in  the 
structure  of  the  world  might  have  been  applied  to  all 
the  purposes  of  utility,  although  they  had  not  possessed 
that  beauty,  fragance,  or  harmony,  which  afford  such 
superlative  charms  to  the  senses,  and  the  imagination. 
There  certainly  never  could  have  existed  such  exquisite 
adaptations  of  objects  to  the  senses,  and  of  the  senses  to 
their  objects,  if  the  Creator  had  not  intended  them  for 
the  ends  of  animal,  and  especially  of  human  felicity. 
Not  to  mention  in  man  his  superior  powers  of  moral, 
intellectual  and  social  enjoyment,  which  open  a  much 
wider  and  nobler  field  of  happiness  if  we  had  leisure  to 
survey  it. 

But  it  is  not  so  necessary  to  prove  the  reality  of  the 
divine  goodness,  which  is  borne  in  so  many  examples  on 
the  whole  face  of  nature,  as  to  account  for  some  ap- 
pearances, and  to  remove  some  objections  which  have 
been  thought  to  contradict  it  in  the  order  of  divine  provi- 
dence. These  consist  in  the  numerous  evils  which  are 
evidently  mingled  with  good  in  the  economy  of  the 
world. 


•32 

The  preponderance  of  good  over  evil  In  the  general 
order  of  things,  is  acknowledged  to  be  manifest  and  great. 
But  the  objectors  reply,  that  if  God  were  perfectly 
benevolent,  and,  at  the  same  time,  omnipotent,  lie  would 
not  have  permitted  the  existence  of  partial  evil.  This 
is  pronouncing  on  an  infinite  system  from  our  own  con- 
tracted views.-— Can  we  say  that,  in  a  universe,  benevo- 
lently constructed,  there  ought  to  be  no  gradation  of 
being?  Or,  if  gradation  be  admitted  in  perfect  con- 
sistency with  the  infinite  benignity  of  the  Creator,  is  it 
not  conceivable  that  a  creature  of  superior  powers  of 
intelligence  and  enjoyment,  may,  by  a  certain  admixture 
of  pain,  be  brought  in  the  scale  of  happiness  to  the  grade 
of  one  of  inferior  powers,  but  exempt  from  suffering, 
and  who  shall  have  no  complaint  to  prefer  against  the 
benevolence  of  providence  ?  The  reflection  may  apply  to 
a  nation,  to  a  species  of  being,  to  a  world.  How  far 
superior,  then,  may  this  world  be,  with  all  its  sufferings, 
to  other  systems  which  may  have  no  such  evils  to  allay 
a  happiness  which,  however,  may  be  regulated  on  an 
inferior  standard  of  sensibility,  or  of  intellect !  Would  a 
man  of  high  sensibilities,  or  of  high  intellectual  powers, 
though  they  may  often  be  the  occasion  of  many  errors, 
or  of  keen  anguish,  be  willing  to  forego  their  pleas- 
ures, in  order  that  he  might  be  reduced  to  an  apathy 
that  would  render  hira  insensible  to  suffering?  Let  us 


33 

balance  our  goods  against  our  evils,  therefore  our  suf- 
ferings against  our  enjoyments,  and  consider  ourselves 
as  completely  happy  in  that  grade  of  felicity  that  is 
marked  jby  the  surplus  of  the  one  above  the  other.  By 
such  a  calculation,  how  might  mankind  extinguish  every 
complaint  of  the  evils  of  life,  and  justify  perfectly  the 
benignity  of  the  Creator  ?  The  conclusion,  therefore, 
which  each  individual  ought  to  frame  with  respect  to 
himself,  a  true  philosopher  may  justly  infer  for  the 
whole  species;  unless  any  man  should  be  so  foolish  as  to 
imagine  that  existence  alone  gives  him  a  claim  on  the 
beneficence  of  his  Maker  for  the  highest  grade  of 
felicity. 

But  why,  it  may  be  asked,  should  we  be  left  to 
estimate  our  grade  in  the  scale  of  being  by  the  surplus- 
age of  happiness  above  pain?  Or,  why  should  pain  exist 
at  all  in  the  system  of  a  benevolent  being? — Satisfac- 
torily to  answer  these  and  a  thousand  other  enquiries 
that  might  be  instituted  on  this  subject  would  probably 
require  a  knowledge  of  the  nature,  and  the  infinite  rela- 
tions of  the  universe,  which  none  but  the  Deity  himself 
can  possess.  We  can,  therefore,  expect  only  from  reve- 
lation the  information  which  we  desire,  as  far  as  be  is 
pleased  to  impart  it.   But  while  we  are  compelled  to 

resort  to  the  feeble  lights  of  our  own  reason  alone  fop 
vot.  ii.  t; 


h  solution  of  the  difficulties  which  spring  out  of  the 
combinations  of  an  infinite  system,  Me  must  be  contented 
with  such  probabilities  only  as  it  can  yield  us.* — If,  in 
the  scale  of  existence,  then,  there  be  a  place  for  such  a 
being  as  man,  with  just  such  a  measure  of  intellect,  and 
sensibility,  and  with  just  such  principles  of  action,  con- 
tinually requiring  excitement  and  correction ;  and  es- 
pecially, if  it  be  conceived  that  he  is  placed  in  the  present 
world,  in  a  state  of  probation  and  discipline  for  a  future 
period,  and  a  higher  condition  of  existence,  a  supposition 
which  to  philosophy  is  as  probable,  as  to  religion  it  is 
certain,  may  not  all  the  pains  which  enter  into  the  moral 
culture  of  tbis  life,  be  regarded  as  the  discipline  of  a  wise 
and  gracious  parent,  and,  therefore,  as  essential  parts  of 
a  most  benevolent  system  ?  Let  us  contemplate  the  rela- 
tion which  the  pains  necessarily  incident  to  human  nature, 
as  it  is  now  constituted,  have  to  the  improvement  of  its 
powers,  and  consequently  to  its  happiness — The  wants 
of  man  contribute  to  rouse  that  industry,  and  habitual 

*  Rejoicing,  however,  that  when  we  have  explored  reason 
to  the  utmost,  we,  as  christians,  still  enjoy  the  superior  illumina- 
tion of  the  sacred  scriptures,  whence,  if  we  cannot  derive  such 
lights  as  will  satisfy  every  enquiry  of  an  ambitious  curiosity, 
we  may,  at  least,  draw  competent  satisfaction  for  a  humble  and 
rational  piety  ;  particularly  with  regard  to  this  great  question, 
why  human  nature  exists  in  its  present  state  of  imperfection, 
requiring  the  corrections,  and  discipline  of  the  pains  and  suf- 
ferings which  we  see  attached  to  it  ? 


35 

exertion  of  all  his  faculties  of  body  and  of  mind,  on 
which  their  vigor  and  perfection  principally  depend. 
A  paradise  where  all  his  wants  should  be  spontaneously 
supplied  from  the  abundance  of  the  soil,  and  all  his 
senses  gratilied  by  its  fragrance,  its  beauty  and  luxuriant 
sweets,  would  deteriorate  the  human  character,  and  sink 
the  noblest  creature  in  the  world  into  a  lazy,  torpid,  and 
vicious  animal.  The  happiness,  no  less  than  the  improve- 
ment of  our  nature,  lies  chiefly  in  constant  and  useful 
employment,  stimulated  by  these  necessary  wants.  En- 
joyment seldom  yields  pleasures  equal  to  those  which 
arise  out  of  the  activity  requisite  to  procure  it.  The 
very  efforts  excited  by  pain  and  want,  or  by  the  appre- 
hension of  them,  often  produce  a  satisfaction,  or  diver- 
sion to  the  mind  which  far  overbalance  their  evils.  Want 
whets  ingenuity  ;  danger  ar*d  suffering  call  into  operation 
the  virtues  of  courage  and  fortitude,  that  communicate  a 
character  of  grandeur  and  nobleness  to  the  mind  which 
often  raises  it  superior  to  the  ills  of  life.  And  labor, 
however  it  might  be  the  curse  of  man  fallen  from  the 
perfection  of  a  superior  nature,  is  beyond  a  doubt  the 
blessing  of  his  present  existence.  Reflections  of  a  similar 
nature  might  arise  from  an  attentive  consideration  of 
every  particular  evil  to  which  human  life  is  exposed.  *v 

And,  iu  a  moral  point  of  view,  how  much  more  justly 
may  we  regard  them  as  a   part  of  the  benevolent  disci- 


S6 

pline  of  our  heavenly  Father  ?  They  are  correctors  of  the 
passions — they  assist  the  habits  of  reflection, — and  often 
recal  the  mind  from  pursuits  injurious  to  its  virtue  and 
its  true  interests. 

But,  instead  of  examining  in  detail  the  various  evils  of 
life,  and  shewing  how  the  goodness  of  God  is  affected  in 
permitting  their  existence,  I  shall  select  only  a  few  ;  be- 
lieving that,  if,  in  these,  the  benevolence  of  the  divine  ad- 
ministration can  be  justified  even  to  our  limited  under- 
standing, a  hint  may  be  suggested,  or  a  clue  given  by 
which  its  vindication  may  be  pursued  in  other  cases. — 
Take  for  examples,  the  circumstances  attending  the  man- 
ner of  our  entrance  into  the  world,  and  of  our  departure 
from  it,  which  have  been  thought  to  involve  serious  ob- 
jections against  the  benignity  of  the  Creator.  With  re- 
gard to  the  former  it  may  be  fairly  maintained,  that  the 
pains  of  bearing,  nursing,  and  educating  children,  with 
the  diseases  and  dangers  of  infancy,  which  seem,  at  first 
view,  to  be  peculiar  afflictions  on  the  human  race,  will  be 
found,  on  examining  their  connexions  and  all  their  rela- 
tions, to  be  among  the  chief  causes  of  the  existence  of 
society,  and  the  felicity  of  social  life.  If  children,  like 
the  young  of  other  animals,  were  able  to  run  as  soon  as 
born,  and  to  feed  themselves,  with  almost  no  dependence 
on  the  care  of  a  parent,  the  powerful  ties,  and  sweet  en- 
dearments of  parental  affection,  and  of  filial  duty,  would 


37 

be  unknown.  The  union  and  happiness  of  domestic  soci- 
ety would  be  dissolved  ;  and  civil  society,  of  which  the 
domestic  is  the  germ  and  the  principal  support,  could  not 
exist.  Man  would  be  a  solitary  and  ferocious  savage. 
The  facility  of  rearing  children,  and  their  independence 
on  a  parent's  care,  would  give  the  strongest  encourage- 
ment to  a  vagrant  and  licentious  concubinage,  destructive 
of  all  the  virtues,  and  of  the  dearest  interests  of  human 
nature.  Besides,  the  diseases  of  pregnancy,  as  human 
nature  is  now  constituted,  and  the  pains  and  dangers  of 
child-birth,  serve  to  endear  the  parents  to  each  other,  by 
the  weakness,  tenderness,  and  dependence  of  the  mother  ; 
by  the  honor,  generosity,  and  sympathy  of  the  father  ; 
and  an  hundred  fold  to  endear  the  child  to  the  parent. 
And  it  is  an  acknowledged  principle  in  human  nature, 
that  the  troubles  and  continual  solicitudes  of  nursing  and 
education,  together  with  the  necessary  diseases  and  haz- 
ards of  infancy,  greatly  augment  the  strength  of  parental 
attachment,  and  lay  the  most  firm  and  lasting  foundations 
of  the  unions,  subordinations,  and  harmonious  affections, 
first  of  domestic,  and  afterwards  of  civil  society.  In  these 
pains,  then,  which  have  been  selected  as  specious  objec- 
tions against  the  benignity  of  the  divine  administration 
of  the  government  of  this  world,  we  find  some  of  the 
principal  sources  of  human  happiness. 


38 

As  to  the  manner  of  terminating  the  present  state  of 
existence  by  death,  the  necessity  of  it  arises  out  of  the 
structure  of  our  nature.  Death  is  the  only  way  of  giving 
to  successive  generations  the  means  of  existence.  If  this 
part  of  the  plan  of  divine  providence  must  be  changed, 
the  whole  order  of  life  must  necessarily  be  changed  with 
it.  There  could  be  no  such  creature  as  man  in  the  scale 
of  being.  The  institution  of  the  sexes  must  be  destroyed 
— the  multiplication  of  the  race  must  cease.  The  modes 
of  subsistence  on  the  products  of  the  earth,  which  can 
sustain  only  a  definite  number,  must  be  done  away;  and 
with  these,  as  the  whole  state  of  human  life  is  connected 
together  by  a  close  unbroken  chain,  must  cease  the  ope- 
rations of  agriculture,  the  interchanges  of  commerce,  and 
the  entire  system  of  the  present  occupations  and  pursuits 
of  men.  Man  himself  would  be  the  first  to  object  to  such 
a  new  order  of  things. — If  death,  then,  be  a  necessary 
part  of  the  human  economy,  and  to  man  himself  it  would 
be  undesirable  to  change  it,  if  it  must  be  accompanied 
with  so  many  other  changes,  still  more  unfriendly  to  the 
wishes  and  the  comfort  of  mankind,  the  only  question  that 
remains,  is,  in  what  manner  it  may  be  best  accomplished 
so  as  to  attain  the  most  useful  ends  of  its  institution  ?~— 
Even  if  the  whole  of  human  existence  were  to  be  termi- 
nated by  death,  this  last  act  of  our  being,  so  justly  formi- 
dable to  our  frailty  and  imperfection,  is  but  a  momentary 


39 

pang,  which  has  been  far  overpaid  by  the  pleasures  of 
life  ',  but  if,  as  religion  assures  us,  and  philosophy  ren- 
ders probable,  this  life  is  only  a  period  of  discipline  and 
probation  for  another  state  of  being,  and  death  is  the 
avenue  through  which  we  must  pass  to  it,  certainly  no 
method  of  approaching  that  decisive  crisis  could  be 
imagined  more  beneficial  than  that  which  exists  of  at- 
taining every  good  moral  end  connected  with  it — of  making 
the  descent  to  the  grave  easy  to  the  virtuous — of  im- 
pressing a  salutary  but  not  oppressive  fear  on  all,  as  a 
useful  restraint  from  vice — of  preserving  the  mind,  by  its 
extreme  uncertainty,  always  vigilant  and  attentive  to  the 
discharge  of  every  duty,  which  is  the  best  preparation  for 
a  tranquil  exit  from  life — and  finally,  of  inducing  it  to 
hold  its  present  pleasures  in  a  continual  state  of  obedient 
resignation  to  the  will  of  God,  in  the  hope  of  exchanging 
them  for  such  as  are  higher  and  more  perfect. 

To  pursue  the  vindication  of  the  divine  goodness  in  the 
introduction  of  other  physical  evils  into  his  general  ad- 
ministration of  the  government  of  the  world,  would  to 
you,  I  trust,  be  unnecessary.*    Of  the  moral  evils  which 

*  On  the  physical  evils  incident  to  the  animal  creation,  and 
particularly  on  that  order  of  natui'e  which  has  destined  the 
weaker  part  as  the  prey  of  the  more  powerful,  see  many  judi- 
cious reflections  in  Dr  Paley's  natural  theology  near  the  con- 
clusion. 


40 

affiict  the  world,  their  origin,  and  their  cure ;  and  how 
they  are  made  to  illustrate  the  benignity  and  mercy  of 
God  to  mankind,  the  only  true,  and  satisfactory  account 
is  to  be  derived  from  revelation.  They  arise  from  an 
abuse  of  the  passions,  and  of  the  moral  liberty  of  man  ; 
but  reason  would  be  deplorably  at  a  loss  to  find  her  way 
in  the  maze  of  doubts,  and  perplexities,  which  attend 
their  existence  in  the  system  of  a  benignant  Deity,  if 
revelation  did  not  put  a  filament  in  her  hand,  or  extend 
a  taper  before  her  footsteps  to  conduct  her  through  the 
labyrinth. This  belongs  to  the  theological  chair. 

The  only  attribute  which  remains  to  be  considered  is 
that  of  justice.  It  is  an  invariable  determination  in  the 
Divine  Mind  to  render  to  all  his  creatures  according  to 
their  works; — to  the  virtuous,  reward, — to  the  vicious, 
punishment.  This  attribute  we  ascribe  to  God,  from  the 
dictates  of  conscience,  and  the  sentiments  of  justice  in 
our  own  breasts. — As  philosophy  delights  to  trace  the 
most  complicated  effects,  to  the  simplest  principles, 
justice  may,  perhaps,  be  considered  as  only  one  expres- 
sion of  infinite  benevolence,  in  which,  by  proper  cor- 
rectives, and  restraints  and  examples,  the  injurious 
effects  of  the  passions  may  be  prevented,  and  individuals 
deterred  from  seeking  their  own  enjoyments,  by  the 
sacrifice  of  a  greater  good  in  violating  the  general  laws 
of  order  and  happiness. 


41 

Justice  has,  by  divines,  been  distinguished  into  two 
kinds, — distributive,  and  vindictive.  The  former  has 
been  already  defined,  and  may  be  applied  for  the  re- 
formation as  well  as  punishment  of  the  offender;  the 
latter  is  conceived  to  be  the  infliction  of  punishment  on 
vice  simply  for  its  own  intrinsic  demerit,  without  respect 
to  reformation,  or  any  ulterior  regard  to  a  farther  good 
end,  except  the  general  good  of  the  universe.  Conscience, 
in  the  nature  of  its  reprehensions,  makes  us  perceive 
that  guilt  deserves  such  infliction;  and  in  its  anticipa- 
tions, in  consequence  of  some  atrocious  acts  of  iniquity, 
often  leads  the  criminal  despairingly  to  fear  it.  These 
facts  appear  to  indicate  that  the  distinction  has  a  real 
foundation  in  nature.  And  in  these  apprehensions,  pro- 
bably, we  discern  the  source  of  those  bloody  rites  of 
superstition  which,  on  so  many  pagan  altars,  have 
dishonored  the  name  of  religion. 

On  this  subject  a  theological  question  has  been  raised 
of  great  importance  to  religion,  whether  in  consistency 
with  the  holiness  and  justice  of  the  divine  nature,  the 
violation  of  the  moral  law,  by  any  creature,  be  pardon- 
able without  a  complete  atonement,  or  full  execution  of 
its  penalty?  If  justice  bean  essential  attribute  of  God, 
and  its  claims  be  as  necessary  as  his  existence,  the  for- 
giveness of  an  offender  can  never  be  a  gratuitous  exer- 

vol.  ii.  F 


42 

tion  of  mere  mercy.  From  this  principle  results  an  in- 
ference which  is  deeply  laid  at  the  foundation  of  the 
christian  religion;  the  necessity  of  complete  atonement 
to  the  violated  law,  and  vindication  of  the  offended  per- 
fections of  God,  in  the  person  of  a  mediator  perfectly 
adequate  to  render  this  satisfaction,  in  order  to  the 
exercise  of  mercy  and  forgiveness  to  the  human  sinner. 
— But  the  discussion  and  determination  of  this  question 
also,  1  refer  to  the  decision  of  another  chair. 


43 


LECTURE  XVI. 


OF  THE  IMMORTALITY  OF  THE  SOUI. 

The  only  certain  evidence  of  this  truth  to  be  derived  from 
revelation — Reason  can  accumulate  a  variety  of  proba- 
ble arguments  to  support  her  hope. — Many  faculties  in 
human  nature  which  would  perish  without  attaining 
their  perfection  unless  there  were  a  future  state  in 
which  they  should  be  unfolded. — The  immortality  of 
the  soul  an  article  of  universal  belief  in  all  ages.—* 
This  not  the  effect  of  artifice  and  intrigue,  but  of  an 
original  principle  in  human  nature.— Not  sujjicient 
objection  against  the  universality  of  this  principle  that 
some  philosophers  have  been  found  who  have  denied  it9 
and  some  nations  tvho  have  blended  it  with  many  errors* 
<— Another  argument  found  in  the  desires  and  hopes  of 
good  men,  and  the  fears  of  the  vicious,  especially  at  the 
approach  of  death. — The  effect  of  the  disbelief  of  this 
doctrine  on  the  public  morals — The  unequal  distribu- 
tion of  providence  in  this  life.— The  nature  of  our 
future  existence. 

IT  is  not  sufficient  that  we  lay  a  foundation  for  the 
knowledge  of  the  theory  of  virtue  in  the  knowledge  of 
the  general  principles  of  human  nature,  unless  we  can, 


at  the  same  time,  propose  motives  to  its  practice  that  by 
their  grandeur  and  interest  may  be  able  to  overcome 
those  temptations  to  the  dereliction  of  our  duty  which 
are  continually  springing  up  in  the  heart  amidst  the 
errors  of  the  passions,  or  assailing  it  under  the  masque 
of  the  pleasures  of  the  world.  With  this  view  I  have 
already  offered  to  your  consideration  the  evidences  of  the 
being  and  attributes  of  God,  from  whom  emanates  the 
law  of  virtue,  and  that  structure  of  things  in  our  nature 
and  in  the  universe,  which  indicates  the  law  to  our 
reason,  that  the  authority  of  his  command,  the  con- 
sciousness of  his  presence,  and  the  apprehension  of  his 
judgment,  might  add  to  the  inward  sentiments  of  con- 
science their  most  powerful  sanction.  With  the  same 
view  I  shall  now  propose  to  you  those  general  arguments 
which  we  derive  from  reason  for  the  immortality  of  the 
soul.  The  authority  of  the  law  of  virtue  would  be  very 
feebly  felt  by  the  greater  part  of  mankind,  if  the  ex- 
pectations, or  the  apprehensions  of  existing  after  this 
life  were  not  shewn  to  rest  on  at  least  probable  founda- 
tions. WTe  must  confess,  however,  that  probability  is  the 
utmost  which  reason  has  been  able  to  attain  on  this  in- 
teresting subject.  We  must  look  for  that  full  and  clear 
persuasion  on  which  the  soul  can  repose  with  tranquil 
assurance  in  the  midst  of  affliction,  and  at  the  approach 
of  death,  only  in  the  sacred  scriptures.  But  the  human 


45 

mind,  in  its  anxious  longings  after  immortality,  is 
inclined  to  make  the  most  of  those  feeble  lights  which 
reason  holds  out  to  encourage  its  hopes.  And  Cicero 
could  only  say,  but  he  says  it  with  the  enthusiasm 
natural  to  a  virtuous  mind,  that  if  he  were  deceived  in 
cherishing  the  hope  of  an  immortal  existence,  he  wished 
not  to  be  aioakcned  from  so  agreeable  a  delusion.  And 
Socrates,  in  his  last  conversation  with  his  friends,  just 
before  drinking  the  fatal  hemlock,  thus  took  his  leave 
of  them, — you  go  to  your  ordinary  occupations,  I  to  my 
fate;  which  of  us  shall  enjoy  the  happier  lot  is  known 
only  to  the  gods. 

The  christian  revelation  has  produced  such  a  deep 
and  general  persuasion  of  this  doctrine  in  the  minds  of 
its  disciples,  as  has  induced  a  common  belief  that  the 
evidence  which  reason  yields  in  its  support,  is  much 
more  direct  and  clear,  than,  on  the  most  fair  and  candid 
examination,  it  will  be  found  to  be.  As  it  is  imparted  to 
us  by  the  author  of  our  holy  religion,  it  is  closely  and 
inseparably  connected  with  the  doctrine  of  the  resurrec- 
tion of  the  body,  of  which  his  own  rising  from  the  dead 
is  the  great  example,  and  the  proof.  Its  evidence,  there- 
fore, rests  simply  in  the  word  and  promise  of  the 
Saviour. — There  are,  however,  such  strong  and  rational 
probabilities,  drawn  both  from  the  physical  and  moral 
principles  of  our  nature,  as  merit  the  most  serious  atten- 


46 

tion  of  the  philosopher,  and  independently  of  the  authori- 
ty  of  revelation,  are  calculated  to  administer  the  con- 
solations of  hope  to  a  virtuous  mind.  The  physical  prin- 
ciples on  which  we  may  be  entitled  to  build  any  hope, 
have  been  already  stated  in  the  sixth  lecture  of  this 
system.  The  moral  reasons  which  may  induce  an  assent 
to  the  same  truth,  I  proceed  now  to  lay  before  you. 

In  the  first  place,  then,  if  the  present  were  the  only 
state  of  human  existence,  the  designs  of  the  Creator  in 
the  formation  of  man  would  seem  to  be  in  a  great  measure 
frustrated  ;  or  they  would  not  be  conformable  to  the  usual 
operations  of  his  wisdom.  We  would  behold  the  noblest 
being  with  which  we  are  acquainted,  just  begin  to  evolve 
faculties  which  are  never  permitted  to  reach  their  full 
vigor,  or  to  display  their  full  beauty.  Man  is  evidently 
possessed  of  talents  which  are  progressive  to  an  indefinite 
degree  of  improvement.  Yet,  no  individual  has  ever  car- 
ried any  one  talent,  and,  much  less,  the  whole  system  of 
his  natural  powers,  to  the  highest  perfection  of  which 
they  are  susceptible :  and  less  still  has  the  whole  race 
approached  near  to  that  ultimate  point  in  the  scale  of 
being  to  which  they  are  manifestly  capable  of  arriving, 
and  appear,  in  some  period  of  their  progress,  to  be  des- 
tined. To  arrest  them,  then,  in  the  midst,  or  rather  in 
the  commencement  of  their  career,  when  they  are  only 
just  beginning  to  display  those  capacities  which  they 


47 

shall  never  fully  unfold,  seems  hardly  conformable  to 
our  most  reasonable  ideas  of  divine  benevolence  and 
wisdom.  All  other  things  which  come  under  our  cogni- 
zance in  this  world,  have  a  point  of  maturity,  that  is  the 
highest  of  which  their  natures  are  susceptible  ;  after  ar- 
riving at  which  they  gradually  decay.  Other  animals  in- 
crease to  a  certain  degree  of  strength,  and  sagacity, 
which  is  evidently  the  ultimate  limit  within  which  their 
nature  is  restricted.  Their  several  species  appear  to  be 
equal  in  all  ages.  There  is  a  point  below  which  they 
hardly  ever  fall,  and  above  which  they  cannot  rise.  It  is 
far  otherwise  with  man.  The  greatest  part  of  his  powers 
would  be  lost,  and  he  would  seem  to  have  been  made  in 
vain,  if  there  were  not  another  state  of  being  in  which 
they  may  unfold  themselves,  and  attain  that  perfection  of 
which  they  seem  to  be  capable.  Hardly,  therefore,  can 
we  conceive  it  to  be  consistent  with  the  wisdom  and  good- 
ness of  God  to  bestow  on  man  so  many  incipient  talents  to 
be  checked,  or  cut  off  in  the  very  commencement  of  their 
progress — germs  that  are  never  suffered  to  come  to  their 
maturity.  Moral  and  religious  sentiments,  in  particular, 
do  not  seem  to  have  any  reasonable  object ;  if  we  are  to 
regard  ourselves  as  being  only  particles  of  animated  dust, 
destined  to  perish  almost  as  soon  as  we  begin  to  exist ;  and 
have  not,  beyond  this  life,  the  hope  of  some  nearer  ap- 
proach to  the  Deity,  and  the  expectation  of  some  reward 


48 

from  him  which  shall  depend  on  the  purity  of  our  pious 
affections,  and  the  integrity  of  our  virtuous  conduct  in 
this  life.  The  sacrifices  of  virtue  would  be  without  re- 
muneration 5  and  the  noblest  dispositions  of  the  heart, 
cultivated  with  the  most  devout  care,  would  be  like  in- 
tense burnt,  and  scattered  by  the  winds,  before  a  being 
who  regards  it  not. 

Another  argument  of  no  inconsiderable  weight  for  the 
doctrine  of  immortality  is  derived  from  the  general  Relief 
of  mankind.  Such  a  universal  concurrence  o*'  opinion  in- 
dicates some  original  principle  of  nature  on  which  it  rests; 
which  can  only  be  the  operation  of  God  himself  in  the 
human  heart.  It  has  formed  an  article  of  belief  in  all 
religions.  It  has  been  laid  at  the  foundation  of  all  the  po- 
litical institutions  of  antiquity,  as  well  as  of  modern  ages. 
And  no  nation  has  been  discovered  so  rude  and  savage, 
who  has  not,  along  with  the  idea  of  God,  united  that  also 
of  the  future  existence  of  the  soul. — Some  philosophers 
ascribe  this  interesting  phenomenon  to  imitation,  and  the 
influence  of  education. — Where  principles  have  already  a 
real  foundation  in  nature,  education  and  imitation  readily 
concur  to  strengthen  their  influence.  But  when  they  are 
entirely  arbitrary,  although  one  principle  may  take  root, 
and  be  propagated  in  one  nation,  and  a  different  one  in 
another,  yet  when  have  we  seen  such  uniformity  in  edu- 
cation among  all  the  inhabitants  of  the  globe  ?   These 


49 

reflections  may  be  illustrated  by  a  familiar  example. 
Filial  duty,  and  respect  for  age,  which  are  natural  dic- 
tates of  the  heart,  have  formed  a  part  of  the  domestic 
culture  ol  every  people  ;  but  the  arbitrary  practice  of 
making  libations  to  the  manes  of  departed  ancestors, 
could  never  be  extended,  by  the  same  influence,  beyond 
the  limits  of  the  people  who  invented  it. 

It  has  been  boldly  asserted,  but,  I  conceive,  with  even 
less  plausibility,  that  the  doctrine  has  been  introduced, 
and  obtained  an  influence  in  the  world  by  the  artifice  of 
priests,  in  order  to  establish  their  authority   over  the 
multitude  by  the  all-subduing  charm  of  superstition  ;  or 
by  the  craft  of  politicians,  and  the  legislators  of  the  early 
ages,  who  found  no  better  way  to  render  their  subjects 
obedient,  and  confirm  the  authority  of  their  laws,  than  by 
the  power  of  religious  fear. — But,  in  answer  to  insinua- 
tions of  this  kind,  we  may  well  ask  when  had  a  few  priests 
or  politicians  more  cunning  than  all  the  rest  of  mankind  ? 
Whence  did  they  derive  that  superiority  of  mind  to  which 
the  whole  world  has  bowed  with   such   implicit  submis- 
sion ?    Or  how  have  the  ministers  of  religion,  and  the 
legislators   of  all  nations,  entered  into  a  league  to  pass 
the  same  deceit  upon   the  world  ?    Such  concert  among 
men  of  the  remotest  regions,  and  of  the  most  opposite 
habits,  opinions,  and  prejudices,  is  impossible ;  and  such 
vol.  ii.  g 


so 

facile  and  universal  submission  in  the  mass  of  mankind 
to  an  arbitrary  opinion,  by  whatever  authority  recom- 
mended, is  incredible. — But  if  it  be  true,  in  the  next  place, 
that  the  order  of  human  society  cannot  be  perfectly 
maintained  without  the  belief  of  a  state  of  future  retribu- 
tion, and  that,  therefore,  the  whole  ingenuity  of  political 
intrigue,  and  the  whole  force  of  political  power,  have 
been  employed  to  establish  this  sentiment  among  the 
people,  this  is  surely  an  argument  of  no  inconsiderable 
weight  for  the  truth  of  the  doctrine.  Otherwise,  man 
must  have  been  formed  under  the  hard  necessity  of  being 
continually  deceived,  in  order  to  promote  his  best  in- 
terests ;  a  consequence  which  we  ought  not  to  impute  to 
the  infinite  wisdom  and  goodness  of  the  Creator. 

The  universality  of  this  belief,  therefore,  ought,  I 
presume,  to  be  ascribed  to  an  original  sentiment  of  our 
nature ;  or,  at  least,  to  a  conclusion  that  so  necessarily 
obtrudes  itself  upon  the  mind  from  the  united  reflections 
of  reason,  and  sentiments  of  conscience,  that  it  may  justly 
be  classed  along  with  our  natural,  and  instinctive  feelings. 
— And  I  have  before  remarked,  that  these  universal  dic- 
tates of  the  human  mind  resulting  from  the  natural  con- 
stitution of  man,  may  always  be  regarded  as  the  opera- 
tion of  God,  and,  therefore,  pointing  to  truth.  For  we 
cannot  eouceive  how  he  should  be  willing  to  deceive  hi* 


51 

creatures,  or  that  it  should  ever  be  necessary  for  him  to 
carry  on  their  moral  government  by  deception. 

It  is  certainly  no  proper  or  sufficient  objection  against 
the  universality  of  this  opinion,  and  consequently  the 
truth  of  the  principle  connected  with  it,  that  there  have 
existed  philosophers  who  have  denied  it,  or  whole  nations 
who  have  blended  with  it  many  superstitious  opinions.— 
A  minute  philosophy,  attempting  to  plunge  too  far  into 
the  subtleties  of  speculation,  is  often  much  less  to  be  de- 
pended on  as  a  guide  to  truth  than  the  simplest  dictates  of 
the  uncultivated  understanding.  We  have  seen  it,  at  dif- 
ferent times,  violate  every  conclusion,  and  pervert  every 
dictate  of  reason  and  common  sense.  We  have  seen  it,  in 
the  hands  of  the  most  acute  metaphisicians,  deny  the  ex- 
istence of  matter,  though  palpable  to  every  sense  : — we 
have  seen  it  deny  the  existence  of  mind,  employing  its 
own  ingenuity  against  itself: — and,  we  have  seen  it  deny 
both  body  and  mind,  substituting,  in  the  room  of  both, 
and  of  the  whole  substantial  universe,  a  troop  of  light 
ideal  shadows  which  we  can  trace  to  no  origin,  and  from 
which  results  no  consequence.*  It  is  not  surprizing,  then, 
if  a  few  philosophers,  in  the  pride  of  speculation,  and  the 
vanity  of  affected  singularity,  should  have  added,  to  their 

*  It  has  been  justly  remarked  that  there  is  no  opinion  so  exr 
travagant  'which  has  not  found  some  one  to  maintain  it. 


52 

other  contradictions  to  the  common  opinions  of  mankind* 
the  denial  of  a  future  existence,  and  the  immortality  of  the 
soul. 

The  certainty  of  natural  truth,  in  the  next  place, 
ought  not  to  be  questioned  or  denied,  on  account  of  the 
errors  which  either  speculation,  or  superstition  has 
mingled  with  it.  Nature,  on  many  subjects,  particularly 
those  relating  to  morals  and  duty,  points  to  the  general 
principle,  or  gives  the  general  impression  of  the  truth, 
but  leaves  it  to  reason,  experience,  and  reflection,  to  give 
it  its  perfect  shape  and  form.  This  each  man  will  do 
with  more  or  less  accuracy  and  precision  of  idea,  accord- 
ing to  the  strength  of  his  intellectual  faculties,  united 
with  his  virtue,  or  according  to  the  prepossessions, 
customs,  and  habits  of  his  education.  From  every  one  of 
these  causes  a  degree  of  error,  particularly  in  a  weak, 
or  superstitious  mind,  may  be  mingled  with  truth,  with- 
out, however,  destroying  its  radical  principle  which  is 
found  in  some  original  dictate  or  instinct  of  nature. — Of 
this  an  analogous  example  was  furnished  in  the  last 
lecture.  The  instincts,  or  original  sentiments  of  nature 
lead  with  undoubting  assurance  to  the  acknowledgment  of 
the  being  of  God ;  but  that  important  principle,  ignorance 
has  impaired  by  admitting  a  plurality  of  gods,  and  super- 
stition corrupted  by  imputing  attributes  to  the  divine  na- 
ture unworthy  his  perfections — Another  example  maybe 


f  urnished  in  the  seeds  of  taste,  which  are  acknowledged  to 
have  been  implanted  by  nature  ;  but,  through  neglect  we 
may  suffer  them  to  shoot  up  wild ;  or  by  improper  culture, 
their  qualities  may  be  vitiated.  Yet,  even  the  corruption 
of  a  principle  is  a  proof  of  its  existence ;  and  the  wildest 
groAvth  of  plants  shews  that  the  seed  is  there,  which  re- 
quires only  a  judicious  cultivation  to  bring  it  to  perfec- 
tion.— The  seeds  of  truth,  therefore,  of  nature's  planting, 
we  ought  not  to  eradicate,  and  cast  away,  because  hither- 
to they  may  have  grown  wild,  or  because  an  unskilful 
husbandry  may  have  suffered  tares  to  be  mixed  with 
them ;  but,  like  wise  planters,  set  ourselves  to  give  them 
every  advantage  of  culture  requisite  to  advance  them  to 
that  state  of  improvement  for  which  the  great  Author  of 
nature  designed  them. 

The  argument,  therefore,  for  the  immortality  of  the 
soul,  drawn  from  the  natural  feelings  and  expectations  of 
mankind,  remains  strong,  notwithstanding  the  gloomy 
speculations  of  sceptical  philosophers,  and  the  absurd  ad- 
mixtures of  superstitious  nations. 

Another  of  the  moral  reasons  on  which  we  found  our 
belief  of  this  doctrine  is  the  strong  desire,  and  the  hope  of 
good  men,  and  the  apprehensions  of  the  vicious ;  which 
are  commonly  found  to  increase  in  proportion  as  they 
seem  to  be  approaching  the  period  of  their  earthly  exist- 


5* 

ence.  The  natural  desire  of  immortality  is  certainly  one 
of  the  strongest  affections  of  the  human  heart,  at  least 
till  the  dominion  of  vicious  passions  have  made  it  the  in- 
terest of  the  guilty  to  fear  it.  Of  virtue  it  is  the  most 
powerful  motive,  and  the  greatest  consolation  under  the 
various  trials  of  life.  And  on  the  violent  and  criminal 
passions  of  men  there  is  hardly  any  restraint  so  effectual 
as  the  apprehension  of  a  future  existence,  and  of  the  re- 
tribution with  which  conscience  always  accompanies  that 
fear.  The  hopes  and  fears  of  human  nature,  therefore, 
both  concur  to  strengthen  the  probability  of  a  renewed 
existence  after  this  life.  If  this  lively  anticipation  of  a 
future  being,  in  a  happier  state,  be  implanted  in  the  hearts 
of  good  men  by  God  himself,  can  we  believe  that  his  in- 
finite benignity  hath  created  in  them  desires  only  to  dis- 
appoint them,  and  inspired  them  with  hopes  only  to  tan- 
talize them  ?  It  would  be  an  unworthy  imputation  on  the 
divine  perfection  to  suppose  that  he  should  convert  the 
most  pure  and  natural  encouragements  of  virtue  into  its 
severest  scourges.  For  what  could  be  more  painful  to  a 
virtuous  and  pious  mind,  than  to  believe  that  all  his  fu- 
ture and  immortal  hopes,  which  are  ever  the  more  ele- 
vated and  strong  in  proportion  to  the  sincerity  and  purity 
of  his  virtue,  might  turn  out  to  be  only  an  unreal  dream  ? 

The  same  conclusion  is  confirmed  by  the  apprehensions 
ef  wicked  men,  especially  under  the  stroke  of  any  great 


55 

calamity,  or  at  the  approach  of  death.  The  conscience  of 
guilt  anticipates  a  retribution  far  exceeding  any  sufferings 
to  which  it  is  subject  in  the  present  life.  And  very  few 
are  the  cases  in  which  this  salutary  fear  can  be  entirely 
extinguished  by  the  hardihood  of  vice,  or  the  principles 
of  a  perverted  education.  And  certainly,  it  would  not  be 
serving  society,  or  human  nature,  to  attempt  to  remove 
from  the  minds  of  men  those  useful  restraints  which  the 
wisdom  of  divine  providence  hath  thought  proper  to  im- 
pose upon  passions,  which  would  otherwise  he  dangerous 
to  the  peace  of  society,  and  to  the  best  interests  of  virtue. 

This  argument  is  not  a  little  strengthened  by  the  effect 
which  the  disbelief  of  the  immortality  of  the  soul,  and  the 
doctrine  of  a  future  life,  would  have  upon  the  state  of 
public  morals.  The  good  could  hardly  find  in  the  general 
order  and  distribution  of  providence  in  the  present  state, 
sufficient  motives  to  sustain  them  in  the  continual  con- 
flicts ;  or  to  encourage  the  incessant  efforts  of  virtue 
which  are  often  painful  and  laborious,  and  not  rarely  ex- 
posed to  extraordinary  hazards.  If  the  passions  of  men 
were  freed  from  the  salutarv  restraint  of  religious  fear, 
and  secrecy  were,  as  it  would  then  be,  the  effectual  pro- 
tection of  crimes,  the  greatest  infelicity  and  disorder 
would  reign  in  society. — We  may  borrow  some  instruction 
on  this  subject  from  the  courts  of  princes,  and  the  capitals 
of  wealthy  and  corrupted  nations,  where  this  doctrine   is 


56 

treated  with  the  greatest  contempt,  and  moral  principle  is 
consequently  most  dissolved.  If  the  whole  capital  were 
as  corrupted  as  the  court, — the  entire  country  as  the  cap- 
ital,— and  all  grades  of  the  people  were  absorbed  in  the 
vortex  of  impiety, — the  common  sense  of  mankind,  sup- 
ported by  the  uniform  testimony  of  all  history,  would 
pronounce  such  a  nation  on  the  verge  of  extinction. 
Among  the  principal  symptoms  and  causes  of  that  de- 
pravity, which  generally  precedes  the  ruin  of  states  and 
empires,  have  justly  been  reckoned,  by  the  wisest  ob- 
servers of  human  nature,  contempt  of  religion,  and  dis- 
belief of  the  future  existence  of  the  soul,  and  of  those 
moral  retributions  which  are  always  a  necessary  accom- 
paniment of  that  doctrine.  Some  of  the  most  eminent  of 
the  Roman  writers  ascribe  the  extreme  corruption  of  the 
Koman  manners  towards  the  period  of  the  republic,  and 
the  first  age  of  the  empire,  to  the  introduction  and  preva- 
lence of  the  epicurean  philosophy,  of  which  the  final  ex- 
tinction of  the  soul  at  death  was  one  of  the  leading  princi- 
ples. If  these  reflections  be  well  founded,  and  the  doe- 
trine  of  immortality,  with  the  respect  for  religion  which 
naturally  accompanies  it,  be  necessary  to  the  peace  and 
order  of  human  society,  and  the  prosperity  of  nations,  the 
truth  of  the  principle  is  strongly  implied.*    It  is  unrea- 

*  See   how  this  principle  accords  with  that   expressed  by 
Cicero.    Orat-  de  haruspicum  responses.   Quis  est  tarn  vecors 


57 

sonable  to  believe  that  God  has  formed  human  nature  in 
such  a  manner  as  to  require  that  it  should  be  governed  by 
falsehood.  We  ought,  on  the  contrary,  to  presume  that 
all  the  plans  of  infinite  wisdom  do  so  correspond,  that 
virtue  and  happiness,  which  appear  to  be  the  end  of  the 
whole,  must  be  established  by  truth  alone. 

There  appears,  in  the  next  place,  such  a  promiscuous 
and  unequal  distribution  of  good  and  evil  in  the  present 
state  as  gives  strong  ground  to  expect  in  some  future 
period  of  our  existence,  a  partition  of  the  blessings  and 
inflictions  of  divine  providence  more  conformable  to  our 
ideas  of  the  goodness  and  equity  of  the  Supreme  Ruler 
of  the  universe.  If  we  be'itld  here  the  ultimate  plan  of 
his  moral  government,  it  would  be  a  most  natural  ex- 
pectation to  find  virtue  placed  in  such  favorable  circum- 
stances that  tranquility,  comfort,  and  honor  at  least 
should  be  within  the  compass  of  its  reasonable  efforts; 
and  that  vice  should  be  subjected  to  deprivations,  and 

qui,  cum  deos  esse  intellexerit,  non  intelligat  eorum  numine 
hoc  tantum  imperium  esse  natum,  and  auctum,  and  retentum  ? 
Quam  volumus  licet,  P.  C.  ipsi  nos  amemus,  tamen,  nee  nurae- 
ro  Hispanos,  nee  robore  Gallos,  nes  calliditate  Paenos,  nee  arti- 
bus  Gr«cos,  nee  denifirae  hoc  ipso  hujus  gentis,  ac  terrse  domes- 
tico  nativoque  sensu  Italosipsos,  ac  Latinos,  sed  pictate  ac  re- 
ligione,  atgue  hac  una  sapientia,  quod  Deorum  immortalium 
numine  omnia  regi,  gubernarigue  peispeximus,  omnes  gentes, 
nationesque  superavimus. 

vol.  ii.  H 


5b 

inflictions  that  should  bear  some  proportion  to  the  dis- 
orders and  enormities  occasioned  by  it.  Contrary,  how- 
ever, to  that  order  which  all  our  ideas  of  reason,  and  of 
the  goodness,  and  equity  of  the  Deity  would  suggest,  we 
often  behold  virtue  suffering  under  deep  and  unavoid- 
able afflictions;  and  those  afflictions,  not  unfrequently, 
induced  immediately  by  its  firm  and  steady  adherence  to 
truth  and  duty;  while  vice  triumphs  in  the  rewards  of 
baseness  and  treachery.  Many  writers  professing  to  put 
external  circumstances  wholly  out  of  the  question,  have 
maintained  that  happiness,  depending  entirely  upon  the 
internal  state  of  the  mind,  is  more  equally  distributed 
according  to  the  virtue  of  individuals  than  is  implied  in 
the  objection;  and  that  Diogenes  in  his  tub  was  really 
more  happy  than  Alexander  on  his  throne. — This  vindi- 
cation of  the  perfect  equity  of  the  present  arrangements 
of  providence,  supposing  them  to  be  final,  is  rather 
plausible  than  substantial.  A  few  men,  by  religious 
enthusiasm,  or  philosophic  speculation,  may  reduce  or 
exalt  their  feelings  to  almost  any  standard.  But,  when 
we  speak  generally  of  the  happiness  of  human  nature, 
it  is  so  much  connected  with  the  sensibilities  of  the  body, 
and  so  much  with  the  relations  of  society,  and  with  ideas 
resulting  from  its  customs,  habits,  and  opinions,  which 
necessarily  incorporate  themselves  with  all  our  feelings, 
that  the  external  state,  and  visible  condition  of  men  must 


59 

afford  us  a  more  accurate  criterion  by  which  to  judge 
of  the  equalities,  or  inequalities  of  divine  providence, 
than  any  interior  and  invisible  standard  of  mental  feel- 
ing. And  by  this  scale,  surely,  we  do  not  perceive  the 
rewards  of  virtue,  or  the  chastisements  of  vice,  bestowed 
in  any  equitable  degree  according  to  the  respective 
characters  of  men.  They  fall  rather  according  to  the 
ingenuity,  and  perseverance  of  individuals,  or  the  defect 
of  these  talents,  or  according  to  some  fortunate  accident, 
than  according  to  merit. 

This  mixed  and  unequal  distribution  of  good  and  evil 
is  probably  better  adapted  to  a  state  of  probation,  where 
virtue  is  to  he  exercised  and  tried  by  being  thrown  into 
various  circumstances  of  prosperity  and  adversity,  than 
one  that  should  indicate  a  more  exact  discrimination  of 
character  would  be.  But  it  is  contrary  to  all  the  ideas 
we  have  framed  of  the  divine  wisdom,  and  beneficence, 
to  believe  that  these  probationary  sufferings  are  to  be 
the  final  reward  of  virtue;  or  that  this  mixture  of 
pleasure  and  pain,  in  which  pleasure  predominates,  is  to 
be  the  final  infliction  of  divine  justice  on  that  vice  which 
disarranges  the  order  and  harmony  of  the  moral  world. 

From  these  considerations,  we  have  the  justest  reason 
to  conclude  that  this  mixed  condition  of  human  life,  and 
promiscuous  distribution  of  divine  providence,  indicates 


60 

to  us  only  a  preparatory  state  of  moral  discipline  and 
trial  that  has  an  ultimate  reference  to  another  and  higher 
condition  of  being. 

And  this  hope  we  have  seen  to  be  confirmed  by  the 
analogy  of  nature  which  seems  inclined  not  to  leave  any 
thing  imperfect,  and  will,  therefore,  not  crush  in  the 
germ,  or  arrest  in  their  incipient  state,  so  many  noble 
faculties  of  the  human  mind  which  are  evidently  capable 
of  attaining  a  degree  of  perfection  which  they  never 
arrive  at,  and  of  evolving  powers  which  they  never  dis- 
play in  the  present  life. — We  have  seen  it  confirmed  by 
the  general  suffrage  of  human  nature,  resting,  it  would 
seem,  on  an  instinctive  impression,  or  intuitive  conviction 
of  the  mind,  and  expressed  by  the  religious  opinions  of 
all  nations. — It  is  further  confirmed  by  the  hopes  of 
virtue,  and  the  fears  of  guilt,  especially  at  the  approach 
of  death. — And  it  is  confirmed,  finally,  by  the  unequal 
distributions  of  providence  in  the  present  world. 

These  moral  reasons,  when  taken  separately,  may  not 
be  calculated  to  produce  entire  conviction  in  a  mind 
disposed  to  weigh  every  argument  with  scrupulous  dis- 
trust; yet,  when  assembled  together  under  one  view, 
they  present  such  a  group  of  probabilities  as  can  hardly 
be  resisted  by  a  candid  and  ingenious  understanding;  and 
must  make  even  the  cold  scepticism  of  infidelity  relent. 


61 

But  I  must  repeat  again  that  full  unwavering  conviction 
on  this  most  interesting  subject  can  be  obtained  only 
from  revelation,  which  not  only  assures  us  of  the  fact  of 
a  future  and  immortal  state  of  being,  but  discloses  to  us 
in  some  measure,  wherein  it  consists. 

On  the  nature  of  our  future  existence,  admitting,  what 
reason  I  think  demonstrates,  that  it  is,  in  the  highest 
degree,  probable,  being  so  far  beyond  the  range  of  our 
experience,  we  can  form  no  precise  and  certain  ideas. 
We  can  speak  of  it  only  in  the  most  general  terms.  But, 
from  the  analogy  of  what  actually  comes  under  our 
observation  of  the  process  of  nature,  we  have  just  ground 
to  conclude  that  the  condition  of  human  nature  will  be 
greatly  improved  above  its  actual  state  in  the  present 
world,  both  in  personal  form,  (if,  according  to  the  ideas 
of  religion,  we  look  for  a  reunion  of  the  body  with  the 
soul,)  and  in  the  powers  of  the  mind.  In  those  trans- 
mutations which  pass  under  our  immediate  review  in  the 
insect  tribes,  we  never  see  them  pass  from  one  state  io 
resume  the  same  appearance  in  another,  but,  in  each 
gradation  in  their  progress,  they  acquire  augmented 
powers,  and  are  invested  with  new  and  more  beautiful 
forms.  It  cannot,  therefore,  be  unreasonable  to  expect  a 
vast  augmentation  in  the  active  powers  of  our  nature, 
both  corporeal  and  mental,  in  the  quickness  and  vivacity 
of  the  senses,  in  the  beauty  and  excursive  force  of  the 


62 

imagination,  and  the  penetration  aud  energies  of  the 
understanding.  And  the  same  analogies  incline  us  to 
expect  the  addition,  or  developement  of  many  new  facul- 
ties of  which,  in  the  present  state,  the  imperfection  of 
em*  reason  cannot  form  any  conception. 

Nor  is  it  improbable  that,  in  an  immortal  existence, 
the  renovated  faculties  of  our  nature  will  advance  for- 
ward in  an  endless  progression  of  improvements,  whether 
reason  incline  us  more  to  the  idea  of  one  uniform  state 
of  existence,  or  to  the  pythagorean  principle  of  succes- 
sive transmutations.  And,  in  the  infinite  system  of  the 
universe  there  is  undoubtedly  an  ample  theatre  for  an 
interminable  progress  both  in  knowledge,  and  in  virtue. 
Nor  can  we  doubt  that  there,  the  wisdom,  the  power,  the 
goodness,  and  equity  of  the  divine  perfections  will  be 
more  conspicuously,  and  illustriously  displayed  than  in 
the  present  introductory  state  of  being. 

Such,  without  giving  any  unwarranted  license  to  the 
excursions  of  imagination,  and  judging  only  from  actual 
analogies  presented  to  our  reason,  may  we  presume  to 
be  a  just,  as  far  as  it  is  extended,  though  most  imperfect 
outline  of  that  future  state  of  being,  to  which  virtue 
ardently  aspires,  and  to  the  hope  of  which  the  most  cool 
and  dispassionate  examination  of  reason  deliberately 
affixes  its  seal. 


63 


LECTURE  XVII. 


OF  THE  NATURE  OF  VIRTUE,  ITS  EXCELLENCE,    ANB 
ITS  SANCTIONS.  _ 

mm 

CONTENTS.  ^ 

The  denomination  virtue,  whence  derived— -Tierce  princi- 
pal questions  raised  by  metaphisical  writers  on  this  sub- 
ject, concerning  its  nature,  its  excellence,  and  the  sanc- 
tions of  the  moral  law — Different  opinions  concerning 
the  nature  of  virtue— -The  opinion  of  the  ancients  pre- 
ferred who  maintained  that  virtue  is  acting  according 
to  nature. — The  general  principles  which  compose  hu- 
man nature— >The  poxvers  and  faculties  of  the  body, 
though  the  lowest  in  order,  are,  however,  not  to  be  ne- 
glected in  our  theories  of  morals. — Move  these  virtue 
requires  the  cultivation  of  the  intellectual  powers — next 
of  the  social  and  benevolent  affections — and  jinally  of 
the  moral  principles. — On  the  excellence  of  virtue  the 
same  diversity  of  opinion  exists,  as  on  its  nature — Itsex- 
ecllence  intrinsic,  necessary,  and  eternal. — Any  change 
in  the  natural  principles  of  the  human  constitution, 
would  have  altered  only  the  modifications,  and  expres- 
sions of  virtue,  not  its  essence — The  sanctions  of  the 
law  of  virtue,  or  the  rewards  and  penalties  which  ac- 


6* 

company  obedience  or  disobedience. — These  found  in 
conscience,  religion,  and  general  interest — The  great 
question  agitated  in  the  ancient  schools,  what  is  the 
chief  good  % — The  opinions  of  the  Epicureans,  the  Stoics, 
and-  the  Pei'ipatetics. 

HAVIXG^tated  generally  the  principles  of  human 
nature,  especially  as  related  to  our  system  of  moral  ac- 
tion, and  exhibited  to  you,  likewise,  the  most  obvious 
evidences  which  reason  presents  to  us  of  the  being  of  God, 
and  of  the  immortality  of  the  soul,  doctrines  which  give 
the  greatest  efficacy  to  the  law  of  duty,  it  is  time  to  come 
more  particularly  to  the  consideration  of  our  duties 
themselves,  the  great  end  to  which  our  preliminary  dis- 
cussions have  been  intended  to  prepare  the  way. 

The  performance  of  all  our  duties  from  proper  princi- 
ples and  with  right  affections,  is  denominated  virtue.  But, 
before  I  enter  into  a  particular  detail  of  the  obligations 
imposed  upon  us  in  our  various  relations,  I  shall  make  a 
few  observations  on  the  general  subject  of  virtue  which 
the  metaphisical  speculations  of  philosophers,  both  an- 
cient and  modern,  seem  to  require. 

Virtue  is  a  denomination  taken  from  a  word  in  the 
latin  language   which  signifies  strength,  or  force,*   be 

*  A  similar  derivation  is  found  in  other  languages  of  the  cor- 
respondent term  in  them  signifying  virtue. 


65 

cause,  in  the  first  rude  ages,  when  the  speech  of  men  was 
beginning  to  be  formed,  personal  vigor,  and  courage,  the 
usual  accompaniments  of  bodily  strength,  were  the  quali- 
ties which  chiefly  attracted  general  admiration  and  confi- 
dence. Virtue  was  then  equivalent  to  another  phrase,  the 
perfection  of  our  nature;  and  this  was  esteemed,  at  that 
time,  to  consist  principally  in  corporeal  strength  and  ac- 
tivity, connected,  as  it  was  commonly  supposed  to  be,  with 
boldness  and  energy  of  mind. 

In  proportion,  however,  as  other  qualities  grew  into  es- 
teem in  the  progress  of  society?  especially  the  good  affec- 
tions of  the  heart,  which  are  so  deeply  laid  at  the  foun- 
dation of  social  happiness,  and  public  utility,  the  same 
term  became,  in  time,  easily  transferred  to  express  these, 
which  were  now  regarded  as  the  most  estimable  proper- 
ties of  human  nature.  And  the  transfer  was  the  more  ea- 
sily made,  because  the  highest  courage  is  commonly 
united  with  the  greatest  benevolence,  and  with  all  those 
noble  dispositions  which  chiefly  contribute  to  the  felicity 
of  mankind. 

At  length,  when  the  institutions  of  civilized  society 
approached  their  highest  improvements,  the  common  hap- 
piness being  placed  under  the  protection  of  the  laws,  and 
individual  security  being  less  dependent,  than  formerly, 

on  personal  strength  and  bravery,  the  moral  dispositions, 
vol.  ii.  i 


66 

from  their  predominant  influence  on  the  general  happi- 
ness, becoming  more  and  more  the  objects  of  universal 
esteem,  have  now,  almost  exclusively,  appropriated  to 
themselves  the  denomination  of  virtue.  The  term  may, 
therefore,  still  be  regarded  as  expressing  generally  the 
perfection  of  our  nature  ;  as,  when  taken  singularly,  it  is 
commonly  employed  to  signify  some  property  which  con- 
tributes to  that  perfection,  This  meaning  of  the  term  we 
apply  by  a  figure,  in  designating  any  useful,  and  distin- 
guishing quality  of  other  animals,  or  even  of  inanimate 
substances ;  as  we  speak  familiarly  of  the  virtues  of  a 
horse,  of  the  virtues  of  a  soil,  of  the  virtues  of  a  plant. 

In  the  speculations  of  philosophers  on  this  subject, 
three  very  general  and  abstracted  questions  have  been 
raised; — what  is  the  nature  of  virtue?—. What  is  its 
excellence? — And  what  is  its  sanction? — On  the  first  of 
these  questions,  we  seek  for  some  general  principle 
which  constitutes  the  essence  of  virtue, — as  benevolence ; 
self-love;  reasonableness  of  action;  or  any  other;  or  we 
enquire  into  the  character  and  quality  of  those  actions 
which  enter  into  its  description. — On  the  second,  we 
enquire  what  is  the  true  ground  of  our  approbation,  or 
esteem  of  virtue?  Why  it  ought  to  be  preferred  to  any 
other  course  of  action  ? — The  last  question  implying  that 
virtue  contains  in  itself  the  essence  of  a  law,  or  rule  of 


67 

duty,  we  enquire  in  it,  by  what  authority  it  is  enjoined? 
under  what  rewards  or  penalties  it  is  enforced  ? 

Of  the  nature  of  virtue,  different  opinions,  or  rather, 
perhaps,  different  modes  of  expressing  the  same  truth, 
have  been  adopted  by  various  writers.  Some  maintain 
the  principle,  that  virtue  consists  in  acting  agreeably  to 
the  will  of  God;  of  which  sentiment  Dr  Paley  is  a 
distinguished  advocate. — Others,  with  Dr  Campbell,  in- 
sist that  it  is  only  the  wisest  means  of  promoting  our 
own  happiness. — Another  class  concur  with  professor 
Hutcheson  in  resolving  virtue  wholly  into  benevolence ; 
making  it  consist  in  a  prudent  well-directed  care  to  pro- 
mote general  good. — And,  finally,  those  who  delight  in 
a  very  abstracted  and  intellectual  consideration  of  all 
subjects,  define  virtue,  agreeably  to  the  opinion  of  Mr 
Locke,  to  be  acting  according  to  the  reason  and  nature  of 
things. 

With  regard  to  these  opinions  it  may  be  remarked  that 
there  is  a  portion  of  truth  in  each  of  them;  but,  as 
general  definitions  of  virtue,  they  seem  to  be  deficient  in 
precision  and  accuracy. — It  is  true,  in  the  first  place, 
that  wherever  we  can  clearly  discern  the*  will  of  God, 
whether  in  the  structure  of  nature,  the  order  of  provi- 
dence, or  the  dictates  of  reason  and  conscience,  that 
will,  being  ever  founded  in  perfect  rectitude  and  truth, 


68 

ought  to  be  esteemed  an  inviolable  law  by  every  reason- 
able  creature.  But  the  advocates  of  this  opinion  too 
frequently  speak  of  virtue  as  if  it  were  an  effect  of  mere 
•will,  without  sufficiently  considering  the  essential,  in- 
trinsic, and  immutable  rectitude  of  its  nature,*  a  perfec- 
tion which  it  partakes  in  common  with  the  nature  of  the 
Deity. — With  those  who  maintain  the  second  and  third 
opinions,  we  cannot  doubt  that  virtue  contributes  both  to 
individual  and  to  general  happiness.  But  this  should  be 
considered  rather  as  an  effect  resulting  from  virtue,  in 
consequence  of  the  wise  and  benevolent  constitution  of 
man,  than  as  constituting  its  nature.  Nor,  indeed,  is  the 
consideration  of  our  own  happiness,  at  the  time  of  acting, 
nor  the  benevolent  consideration  of  the  happiness  of 
others,  always  the  direct  and  immediate  motive  of  many 
a  virtuous  act  ,•  but  frequently  we  are  urged  to  it  simply 
from  the  sentiments  of  piety,  of  justice,  or  charity,  from 
some  natural  instinct,  or  from  the  authority  of  con- 
science.— When,  in  the  last  place,  virtue  is  said  to  con- 
sist in  acting  according  to  the  reason  and  nature  of 
things,  the  definition,  though  approaching  to  truth,  seems 
to  be  by  far  too  general.  The  being  and  nature  of  things 
embraces  the  infinite  relations  of  the  system  of  the 
universe;  a  very  minute  portion  only  of  which,  can  be 
subject  to  our  cognizance.  Such  a  standard  of  duty,  ex- 
pressed in  such  general  terms,  must  be  extremely  vague, 


69 

unless,  like  God  himself,  we  were  intimately  acquainted 
with  the  entire  structure  of  nature.  But,  besides  the 
generality  of  the  rule,  it  labors  under  another  defect. 
The  system  of  things  embraces  physical  as  well  as  moral 
relations.  It  would  make  virtue,  therefore,  consist  in 
skill  in  the  arts,  as  well  as  in  the  practice  of  duty. 

If  the  definition  had  been  limited  to  our  own  nature ; 
the  mutual  relations  of  its  different  principles  to  one 
another,  and  the  relations  of  the  whole  to  other  sensible 
beings,  I  would  be  disposed  to  acquiesce  in  it.  And,  with 
this  restriction,  it  would  coincide,  in  a  great  measure, 
with  that  given  by  a  large  portion  of  the  ancient  philoso- 
phers, who  maintained,  that  virtue  is  Jiving  according  to 
nature: — that  is,  according  to  the  respective  dignity  and 
importance  of  the  different  principles  which  enter  into 
the  composition  of  human  nature; — according  to  the 
relations  in  which  it  is  placed  to  other  sensible  beings 
within  the  sphere  of  its  action ;  and,  finally,  according  to 
the  end  for  which  it  seems  to  have  been  formed. 

Any  system  is  then  said  to  be  perfect  when  it  is  con- 
formed to  the  design  of  the  maker,  when  it  is  possessed 
of  all  its  parts,  when  they  are  arranged  in  the  order  in 
which  they  are  naturally  related  to  one  another,  and 
move  in  concert  to  accomplish  the  end  for  which  they 
were  intended.   And  although  a  machine,  or  a  building 


ro 

were  deranged,  so  that  the  relations  of  the  separate  parts 
did  not  appear  immediately;  yet,  a  skilful  machinist, 
or  architect  might,  by  a  careful  inspection  and  compari- 
son of  each  part  with  the  whole,  determine,  at  length, 
its  proper  place,  and  use  in  the  system.  This  analogy 
may  easily  be  applied  to  human  nature,  although  it  be, 
as  it  is  confessed  to  be,  disordered  by  many  criminal  and 
irregular  passions.  By  the  proper  exercise  of  reason, 
we  may  discern  those  principles  which  have  acquired 
undue  strength,  or  those,  on  the  other  hanu,  which  are 
too  feeble,'  or  when  the  whole  are  in  just  harmony  and 
proportion. 

Let  me  employ  another  analogy  for  the  sake  of  illus- 
tration. In  the  complicated  machinery  of  a  time-piece,  if 
a  few  of  the  wheels,  detached  from  the  control  of  the 
regulator,  were  left  to  be  impelled  by  the  force  of  the 
spring,  although  their  rapid  motion,  in  that  circumstance, 
would  be  conformable  to  the  nature  of  such  wheels  urged 
by  such  a  power,  yet  it  would  not  be  according  to  the 
nature  of  the  machine.  The  union  and  subordination  of 
the  parts  has  been  dissolved.  In  like  manner,  if  a  vicious 
man,  under  the  impulse  of  passion,  should  abandon  him- 
self to  any  intemperate  excess,  although  the  disorder 
would  be  conformable  to  the  nature  of  that  passion  acting 
without  the  government  of  reason  and  conscience,  it  would 


71 

not  be  agreeable  to  the  whole  nature  of  man  moving  as 
one  system,  according  to  the  design  of  the  Creator. 

The  preceding  reflections  may  serve,  in  some  measure, 
to  explain  the  meaning  of  those  who  maintain  this  general 
principle,  that  virtue  is  living  conformably  to  nature  : 
that  is,  to  nature,  as  it  appears,  from  a  careful  examina- 
tion of  all  its  constituent  powers  and  faculties,  to  have 
been  its  original  state  in  the  purpose  and  intention  of  the 
Deity  ;  and  which  appears,  indeed,  to  be  the  natural  and 
proper  operation  of  all  its  parts,  when  they  all  move  in 
perfect  coneert  and  harmony  with  one  another,  according 
to  the  relations  which  reason  evidently  indicates  to  exist 
among  them.  Human  nature  obviously  appears  to  be,  at 
present,  in  a  state  of  moral  derangement ;  yet,  as  amidst 
the  broken  columns,  and  arches  of  some  ruined  temple, 
you  can  perceive  what  has  been  the  beautiful  arrange- 
ment and  structure  of  the  entire  pile,  so  we  can,  even 
now,  discern,  among  the  disordered  powers  of  man,  what 
is  the  true  glory  of  his  moral  and  intellectual  constitution. 

For  this  purpose  it  is  necessary  to  enter  into  a  minute 
and  particular  examination  of  the  constituent  powers  and 
principles  of  our  nature,  to  enquire  what  proofs  of  excel- 
lence and  worth  they  respectively  contain  ?  what  indica- 
tions of  natural  superiority  and  title  to  command  accom- 
pany the  sentiments  of  some  of  them  ?  to  discern  which 


1% 

afford  the  most  pure,  dignified,  and  durable  enjoyments  ? 
or  which,  on  beholding  them,  inspire  us  with  the  highest 
admiration  and  respect,  or  procure  for  their  possessor  the 
most  genuine  esteem?  These  enquiries,  correctly  an- 
swered, will  point  out  the  rank  whieh  each  principle 
ought  to  hold ;  the  culture  which  should  be  bestowed 
upon  each ;  and  the  influence  which  they  should  respec- 
tively exert  on  our  conduct  and  manners. 

The  general  principles  of  our  nature  affected  by  such 
an  investigation,  may  be  ranged  under  the  following 
heads, — the  corporeal  powers  and  appetites,— the  social 
affections, — the  intellectual  faculties,^-and  the  moral  sen- 
timents. Under  each  of  these,  however,  are  many  sub- 
divisions which  it  would  be  difficult  to  enumerate,  and 
class  in  their  proper  order.  They  must  be  left  to  the  re- 
flection and  experience  of  each  person  as  objects  occur, 
or  occasions  are  presented  in  life,  to  call  them  into  exer- 
cise.— But  on  the  general  divisions  we  may  remark,  that 
the  faculties,  propensities,  and  pleasures  of  the  body  are 
evidently  the  lowest  in  the  scale,  and  the  moral  senti- 
ments the  highest.  And,  of  the  others,  the  social  affec- 
tions are,  perhaps,  superior  in  their  intrinsic  importance, 
and  certainly  in  their  influence  on  human  happiness,  to 
the  intellectual  powers. 


From  this  transient  and  comparative  view,  although 
the  corporeal  part  of  our  nature,  its  propensities  and  fa- 
culties, are  by  no  means  to  be  neglected  in  our  theories 
of  virtue,  or  in  its  practical  details  ;  yet  are  they  mani- 
festly of  inferior  consideration  to  our  moral  principles,  to 
our  intellectual  faculties,  or  our  social  and  benevolent 
dispositions.  These  demand  the  supreme  care,  and  the 
most  assiduous  culture  of  every  wise  and  good  man,  be- 
cause they  are  the  properties  by  which  human  nature  is 
chiefly  distinguished  from  that  of  the  inferior  animals. 
But  it  is  a  mistaken  notion  into  which  some  ancient  sects 
of  philosophy  fell,  and  which  formerly  misled  many  ex- 
cellent men  of  the  christian  church,  to  suppose  that  the 
body  is  the  seat  exclusively  of  all  vicious  and  corrupted 
passions,  which,  therefore,  it  is  peculiarly  meritorious* 
not  only  to  restrain  within  prudent  and  virtuous  bounds, 
but  by  voluntary  inflictions  and  macerations  of  the  flesh, 
totally  to  extinguish.  On  the  contrary,  as  man  is  a  rea- 
sonable being  composed  of  body  as  well  as  of  spirit, 
reason  and  religion  both  teach,  that  his  Creator  has 
charged  him  with  the  duty  of  providing  for  the  improve- 
ment and  perfection  of  his  whole  nature  ;  and  consequent- 
ly for  the  vigor  and  activity  of  his  corporeal,  not  less,  in 

their  proper  place,  than  of  his  mental  faculties, 
vox.  ii.  k 


7* 


This  care  is  requisite  to  enable  him  to  fulfil,  in  the 
best  manner,  many  of  the  most  useful  purposes  of  life. 
And  those  passions  and  affections  which  are  supposed  to 
have  their  seat  chiefly  in  the  body,  such  as  anger,  pride, 
the  affection  of  the  sexes,  although  their  ardor  requires 
them  to  be  subjected  to  the  habitual  control  of  a  prudent 
rein,  are  necessary  as  our  nature  is  constituted,  to  the 
highest  perfection  of  the  human  character.  An  apostle 
could  say,  he  angry  and  sin  not.  And,  certainly,  the 
noble  and  manly  countenance  of  conscious  bravery  with- 
out arrogance,  united  with  the  serene  tranquility  of  be- 
nevolence and  gentleness  without  weakness,  presents  in 
the  human  form  and  aspect  a  work  most  worthy  of  God, 
Let  me  again  illustrate  the  remark  in  the  affection  which 
subsists  between  the  sexes.  None  of  the  passions  are 
more  dangerous  and  corrupting  when  not  placed  under  the 
government  of  reason  and  virtue.  But,  when  subjected 
to  the  discipline  of  a  virtuous  self-command,  it  contri- 
butes to  energy  of  character,  to  the  cultivation  of  human- 
ity and  politeness,  and  to  mingle  a  certain  generosity,  and 
elevated  sense  of  honor  in  the  manners  of  society,  which 
would  otherwise  be  liable  to  become  rude  and  inhuman. 
So  that  the  corporeal  powers,  and  the  animal  affections, 
although  among  the  inferior  attributes  of  human  nature, 
are  far  from  being  unworthy  the  consideration,  and  the 
well-directed  culture  of  a  good  man.   On  the  other  hand, 


as  they  form  an  important  portion  of  our  compound  na- 
ture, and  extend  an  influence  not  inconsiderable  into  the 
action  and  movements  of  our  whole  sensitive,  rational, 
and  moral  system,  they  enter  essentially  into  every  just 
theory  of  virtue.  A  man,  however  upright  in  his  inter- 
course with  the  world,  however  meek  in  his  dispositions, 
yet  if  he  is  vapid,  and  without  any  point,  and  energy  in 
his  character,  if  he  is  gross  and  uncultivated  in  his  man- 
ners, if  he  is  even  negligent  and  slovenly  in  his  person, 
and  without  that  attention  to  appearance  which  is  requi- 
site to  render  him  acceptable  in  the  society  of  his  friends, 
is,  in  proportion  to  the  neglect,  defective  in  true  virtue. 
And,  although  a  maxim  of  Mr  Hume's  that  a  reasonable 
attention  to  cultivate  personal  vigor,  activity,  cleanliness, 
and  beauty,  is  essential  to  virtue,  has  been  sometimes 
treated  with  ridicule ;  yet,  has  it  a  certain  foundation  in 
nature,  and  the  genuine  principles  of  philosophy.  Nor 
can  I  think  that  it  was  altogether  out  of  the  view  of  St. 
Paul  in  giving  the  character  of  true  religion,  when,  after 
enjoining  ivhatsoever  are  true,  honorable,  and  just,  he 
adds,  tvhatsoever  things  are  lovely,  and  of  good  report,  if 
there  be  any  virtue,  if  there  be  any  praise,  think  of  these 
things — On  this  branch  of  the  subject  I  have  insisted 
with  the  more  particularity,  because,  in  the  theories  of 
morals  which  have  been  proposed  by  various  writers,  it 
has  so  seldom  received  the  consideration  which  it  deserves. 


76 

The  next  class  of  the  human  powers  is  the  intellectual, 
embracing,  not  merely  the  faculty  of  reasoning,  or  of 
laying  down  principles  of  science,  and  of  pursuing  them, 
through  a  legitimate  train  of  inferences,  to  their  ulti- 
mate conclusions;  but  the  powers,  likewise,  of  imagina- 
tion and  taste,  and  all  those  talents  which  go  to  form  the 
genius,  and  are  connected  with  the  invention  or  improve- 
ment of  the  arts.  It  is  indispensable  to  the  character  of 
virtue  to  cultivate  these  powers,  which  form  the  basis  of 
the  high  distinction  which  human  nature  claims  over 
the  inferior  animals,  with  all  the  assiduity  that  is  con- 
sistent with  the  practical  duties  which  in  our  various 
situations  we  owe  to  ourselves,  to  society,  and  to  re- 
ligion. All  men,  it  is  true,  are  not  placed  in  circum- 
stances equally  favorable  for  the  cultivation  of  their 
intellectual  powers,  nor  do  their  avocations  in  life  re- 
quire, or  permit  an  equal  proportion  of  their  time  to  be 
devoted  to  these  refined  and  dignified  pursuits.  A  great 
disparity,  therefore,  must  necessarily  appear  in  the 
mental  employments  of  different  men. — -What  is  chiefly 
requisite  in  those  who  enjoy  the  fairest  opportunities 
for  the  improvement  of  their  minds,  and  possess  the  best 
endowments  from  nature,  is  to  be  aware  equally  of  the 
strength  and  weakness  of  human  reason.  Of  its  strength 
to  awaken  hope,  and  stimulate  exertion  on  all  subjects 
which  are  within  the  proper  range  of  its  faculties ',  of 


77 

its  weakness,  to  check  the  boldness  of  hypothetical  con- 
jecture which  is  so  often  used  to  the  great  injury  of 
science;  and  especially  to  repress  rash  and  presumptuous 
conclusions  on  moral  and  divine  subjects,  instead  of  hum- 
bly soliciting  the  aid  of  that  Infinite  Mind,  who,  we  have 
reason  to  believe,  will  sometimes  deign  to  impart  his 
suggestions  to  those  who  piously  and  submissively  wait 
Tor  them.*  As  there  is  no  exercise  of  the  human  facul- 
ties more  favorable  to  virtue,  than  the  humble,  patient, 
and  diligent  cultivation  of  the  intellectual  powers ;  none 
is  more  unfriendly  than  a  bold  licentious  indulgence  of 
the  imagination,  on  the  one  hand,  or  on  the  other,  of 
those  refinements  in  speculation  which  attempt  to  push 
the  enquiries  of  reason  beyond  the  sphere  assigned  to  it 
by  nature. 

In  the  practical  details  of  virtue,  in  the  next  place, 
the  social  and  benevolent  affections  hold  a  rank  superior 

*  A  beautiful  example  of  this  modest  exercise  of  reason  we 
have  in  a  devout  heathen,  the  great  Scipio,  who,  according  to 
Aulus  Gellius,  never  undertook  any  important  design  without 
deeply  reflecting  on  it  in  the  presence  of  the  Deity,  according 
to  the  ideas  of  his  religion,  and  seeking  the  direction  of  the 
divine  counsel,  in  devout  meditation,  and  laying  open  his  mind 
to  the  celestial  influence. 

P.  Scipio  Africanus  nihilfaepitpriusquam  sedisset  diutissime 
in  cella  Jovis,  quasi  acciperet  inde  mentem  divinam,  et 
cons'lia  salutaria  reipublicse.  Propterea  solitus  erat  ventitare 
in  Capitolium  ante  diluculum. A.  Gel.  1.  7.  c.  1. 


78 

to  that  of  the  intellectual  powers.  Not  that  virtue  con- 
sists, according  to  the  opinion  of  some  good  men,  ex- 
clusively in  the  exercise  of  universal  benevolence.  None 
but  the  Deity  can  embrace  an  object  so  vast  as  the  whole 
ef  human  existence,  and  make  it  the  direct  and  immedi- 
ate scope  of  his  actions.  But  in  order  most  effectually  to 
accomplish  this  universal  design,  he  has  divided  it  into 
separate  and  individual  parts,  charging  each  person,  in 
the  first  place,  with  the  care  of  his  own  interests,  that 
in  this  way  the  felicity  of  the  whole  may  be  provided 
for  by  the  individual  exertions  of  all.  But  when  each 
man  has  acquitted  himself  of  this  primary  duty,  virtue 
requires  that  the  principal  portion  of  his  active  energies 
should  be  employed  in  cultivating  the  affections  which 
unite  him  with  society,  and  fulfilling  the  duties  which 
render  it  flourishing  and  happy  by  mutual  co-operation, 
and  by  the  reciprocal  interchange  of  kind  sentiments, 
and  beneficent  offices.  These  are  clear,  and  definite  ob- 
jects which  we  can  distinctly  grasp  in  the  mind,  and 
which  present  to  the  affections  a  precise  aim.  All  beyond 
this,  when  we  would  render  the  object  of  benevolence 
more  expansive,  is  only  a  vague  and  general  wish  for  the 
happiness  of  universal  being. — The  impulses  of  self-love 
arc,  by  the  constitution  of  our  nature,  so  strong  that  the 
duties,  or  the  good  offices  which  a  man  performs  to 
himself,  and  those  who  immediately  depend  upon  him, 


?9 

do  not  stand  high  in  the  scale  of  virtues ;  hut  the  derelic- 
tion of  them  is  branded  with  peculiar  reprobation  in  the 
catalogue  of  crimes.  Our  benevolent  affections,  and  our 
social  duties  maintain  a  much  higher  grade;  and  the 
constant  claims  which,  under  one  form,  or  another,  are 
made  upon  them  in  society,  requires,  in  order  to  fulfil 
them  virtuously,  a  large  portion  of  life. 

It  would  be  a  mistake,  however,  to  suppose  that  the 
benevolent  virtues  were  solely  occupied  with  the  great 
interests  of  society,  or  of  human  nature.  They  descend 
to  regulate  the  smallest  sources  of  social  enjoyment. 
Attentions  to  please,  amiable  dispositions,  polite  and 
elegant  manners,  and  all  those  talents  or  graces  of  mind, 
or  conduct,  which  contribute  to  promote  the  harmony  of 
society,  and  render  men  most  interesting  to  one  another, 
enter  so  deeply  into  the  springs  of  social  pleasure,  and 
possess  such  an  important  influence  on  human  happiness, 
as  justly  claim  for  them,  though  often  omitted  in  moral 
systems,  an  elevated  rank  among  the  virtues.  They 
especially  deserve  the  attention  of  youth,  who  are  enter- 
ing into  public  life.  They  correct  the  asperities  of  the 
passions,  they  soften  and  sweeten  the  intercourses  of 
society;  and  possess  a  most  amiable  reflex  influence  on 
the  temper  and  character  of  those  who  study  to  cultivate 
them. 


80 

Finally,  the  highest,  and  noblest  principles  of  our 
nature,  which  ought,  therefore,  to  be  cultivated  with  the 
greatest  assiduity,  and  the  most  reverential  respect,  are 
its  moral  sentiments,  embracing  justice  to  mankind,  and 
piety  to  God.  These  sentiments  are  accompanied  with 
such  a  perception  of  dignity  and  authority  in  their  own 
nature,  and  such  a  sense  of  duty  and  obligation  on  our 
part,  as  proves  them  to  be  of  the  highest  order  in  the 
human  constitution,  and  invested  with  a  natural  right  of 
control  over  every  other  power.  A  just  reverence  for 
them  is  that  which  is  implied  in  the  common  maxim  that 
a  man  should  respect  himself.  Not  that  arrogant  claim 
to  respect  from  others  for  our  follies,  and  humors,  which 
is  often  made  by  men  who  have  no  other  pretence  to 
virtue  except  that  rash  courage  which  is  always  ready  to 
defend  their  vices ;  but  that  inward  and  habitual  rever- 
ence for  the  dictates  of  reason  and  conscience,  of  honor, 
propriety,  and  truth,  which  is  the  surest  distinction  of  a 
virtuous  man. 

The  action  of  the  whole  system  is  then  only  regular, 
and  conformable  to  the  original  plan  and  constitution  of 
nature,  when  every  movement  is  accompanied  with  an 
habitual  sense  of  rectitude,  and  duty,  governed  by  a  re- 
spectful deference  to  the  judge  and  witness  in  our  own 
breast,  the  representative  of  that  infinite  and  holy  inspec- 
tion to  which  we,  and  all  things  are  subject 


81 

The  principle  which  I  have  been  illustrating,  of  making 
original  nature,  as  far  as  we  can  now  discern  it,  the 
proper  model  of  virtue,  implies,  in  the  next  place,  acting 
according  to  the  relations  which  human  nature  sustains  to 
all  other  sensible  beings  ;  whether  to  God  as  our  Creator, 
to  mankind  as  our  brethren,  or  other  creatures,  as  yielded 
to  our  use,  or  placed  under  our  power,  and  control. 
These  ideas  will  be  more  particularly  explained  when  I 
come  to  treat  of  the  detail  of  moral  duties  in  the  next 
lecture. 

Having,  in  these  reflections,  laid  a  foundation  for  un- 
derstanding the  general  doctrine  of  the  ancient  philoso- 
phy, that  virtue  consists  in  acting  according  to  nature, 
by  pointing  out  its  constituent  principles,  and  by  shewing 
their  comparative  importance,  and  their  mutual  relations 
to  one  another  in  the  system,  and  the  necessity  of  their 
moving  together  in  harmony  and  concert  according  to 
their  just  proportions,  in  every  course  of  action:  it  may 
be  farther  illustrated  by  considering  shortly  what  indica- 
tions are  contained  in  human  nature  of  the  end  for  which 
it  is  designed.  Every  system  that  is  wisely  constructed, 
has  all  its  operations  so  combined  and  regulated  as  to 
concur  in  the  accomplishment  of  some  useful  end  ;  and  in 
proportion  as  it  attains  this  end  with  certainty  and  ease, 

it  is  said  to  be  perfect  according  to  the  design  of  the 
vol.  ii.  x, 


S2 

maker.  Pursuing  this  analogy,  if  we  ask,  what  is  the 
did  for  which  man  has  been  formed  ?  As  far  as  humau 
reason  can  dive  into  the  purposes  of  nature,  it  seems  to 
be,  to  enjoy  and  communicate  happiness  as  a  sensible,  ra- 
tional, social,  and  moral  being.  In  this  way  he  best  pro- 
motes the  benignant  purposes  of  the  Deity,  and  thereby 
renders  due  glory  to  him  j  by  the  practice  of  good  morals, 
and  by  becoming  the  instrument  of  the  divine  beneficence 
to  his  fellow  beings.  The  sincere  aim  to  fulfil  this  end  is 
virtue. — Against  the  design  of  his  Creator,  it  must  be 
confessed,  man  often  errs  :  sometimes  through  ignorance, 
and  mistake ;  but  much  oftcner  through  misguided  pas- 
sion. He  seldom  errs,  however,  with  impunity.  He  is 
commonly  chastised  by  the  reprehension  of  his  own  mind^ 
and  the  painful  consciousness  that  he  has  departed  from 
the  true  order  of  nature. 

Permit  me  then  to  conclude  with  this  necessary  cau- 
tion :  since  names  are  apt  to  mislead,  and  it  is  difficult  to 
free  the  mind  from  the  influence  of  habitual  associations 
among  its  ideas,  we  ought  to  beware  of  imagining  that  the 
philosophical  language  of  acting  according  to  nature, 
ever  implies  yielding  to  the  impulse  of  any  single  passion 
or  tendency  which  may  happen  to  be  strongest  at  the 
time.  On  the  contrary,  it  implies  the  regular  movement 
ot  the  entire  system  in  the  just  relations  and  proportions 
of  all  its  parts,  as  it  appears  from  reason  to  have  been 


originally  designed  by  the  Creator  ;  although  left  to  man 
as  a  free,  rational,  and  moral  agent,  to  carry  into  full  ex- 
ecution, for  a  continual  exercise  of  his  wisdom,  and  his 
virtue. 

OF  THE  EXCELLENCE  OF  VIRTUE. 

In  the  next  question  which  occurs  on  this  subject,— 
what  is  the  excellence  of  virtue  ?  "We  enquire  wherein  its 
merit  consists  ?  What  is  the  true  ground  of  our  approba- 
tion, or  esteem  of  it?  Why  is  it  preferable  to  any  other 
course  of  action  ? 

The  same  diversity  of  opinion  has  existed  on  this  as 
©n  tbe  last  question.  Some  writers  maintain  that  its  ex- 
cellence lies  simply  in  its  conformity  to  the  divine  will ; 
or  that  the  single  reason  why  it  deserves  our  esteem,  and 
is  to  be  preferred  to  vice,  is  because  God  has  prescribed 
it. — This  opinion  seems  to  give  to  virtue  too  arbitrary  a 
complexion,  and  too  mutable  a  nature  ;  and,  apparently, 
implies,  in  the  mode  of  expression,  contrary,  I  presume, 
to  the  true  intent  of  its  authors,  that  our  preference 
might  have  been  equally  required  for  some  form  of  vice, 
if  such  had  been  the  sovereign  order  of  the  Creator.  On 
the  contrary,  virtue  seems  to  possess  as  necessary  an  ex- 
cellence as  the  Deity  himself.  In  him  goodness,  justice, 
and  truth,  which  are  the  source,  and,  as  far  as  the  human 
nature  can  resemble  the  divine,  the  pattern  of  virtue  in 


Si 

man,  are  equally  unchangeable  and  eternal  with  his  in- 
telligence, wisdom,  and  power. 

Reflections  of  this  kind  have  laid  the  foundation  of  a 
second  opinion,  that  the  excellence  of  virtue  is  to  be  sought 
solely  in  the  reason  and  nature  of  things :  which  is  jonly 
another  way  of  sajing  that  its  excellence  is  intrinsic,  in 
the  nature  of  the  thing,  and  like  the  perfection  of  the 
Deity,  is  eternal  and  immutable. 

The  third  opinion  is,  that  its  excellence  consists  in  its 
tendency  to  promote  general  happiness. — And  the  last, 
that  it  is  excellent,  or  is  so  to  be  esteemed  by  each  man, 
merely  from  its  relation  to  his  own  happiness. 

On  this  subject  we  may,  perhaps,  justly  pronounce,  that 
there  is  in  virtue,  that  is,  in  moral  rectitude  and  good- 
ness, an  intrinsic  and  necessary  excellence,  as  was  shewn 
in  our  reflections  on  the  moral  faculty.  It  is  not  depend- 
ent upon  mere  will,  even  the  will  of  the  Deity ;  but  rests 
upon  the  same  immutable  foundation  with  our  ideas  of 
the  divine  perfection.  We  can  have  no  other  just  concep- 
tion of  God  himself  but  of  infinite,  eternal,  immutable 
goodness,  rectitude,  and  truth,  united  with  wisdom  and 
power.  And  virtue  in  human  nature  is,  in  its  degree,  a 
transfusion  of  these  perfections.  Its  excellence,  there- 
fore, consists  in  the  essential  nature  of  the  thing  itself. 
And  that  is  founded  in  the  eternal,  necessary  and  im- 


85 

mutable  perfection  of  God.  But  although  I  reject  the 
abstract  principle,  that  the  excellence  of  virtue  consists 
in  its  conformity  to  the  will  of  the  Creator,  or  that  his 
will  alone  constitutes  its  excellence ;  yet,  wherever  his 
will  is  clearly  indicated,  whether  in  the  structure  of  the 
#  universe,  and  the  order  of  providence,  or  in  the  constitu- 
tion of  our  own  nature,  and  the  relations  which  he  has 
established  between  us  and  other  beings,  it  must,  from 
his  infinite  wisdom  and  goodness,  be  the  surest  rule  of 
duty  to  us. 

In  support  of  the  principle  that  virtue,  both  as  to  its 
nature  and  its  excellence,  depends  wholly  upon  the  will 
of  God,  it  is  demanded  if  he  might  not  have  formed  us 
with  other  faculties,  and  established  between  us  and 
other  beings  different  relations  from  those  which  subsist 
at  present?  And  whether,  in  that  ease,  the  nature  of 
virtue  must  not  have  suffered  a  proportional  change  ? — I 
reply,  that  the  external  acts  by  which  those  varied  rela- 
tions must  have  been  expressed,  would  necessarily  be 
changed ;  but  its  essence  and  principle,  which  consists  in 
equity,  and  benevolence  to  mankind,  in  piety  to  God,  and 
regard  to  the  happiness  of  all  being,  must  have  remained 
unaltered.  Will  and  power,  therefore,  can  only  alter  the 
modifications  of  virtue,  but  do  not  change  its  nature. 


OP  THE  SANCTION  OF  VIRTUE. 

The  third  question  arising  on  this  subject ;  What  is 
tlie  sanction  of  virtue?  implies,  that  it  contains  a  law,  or 
rule  of  conduct,  and  we  ask  by  what  authority  it  is  en- 
joined ?  and  by  what  rewards  and  penalties  it  is  enforced  ? 
For  the  sanction  of  a  law  signifies  the  good  which,  by 
the  constitution  of  the  lawgiver,  is  made  to  follow  obedi- 
ence as  its  reward,  and  the  suffering  which  he  has  annexed 
to  disobedience  as  its  penalty. 

The  authority  by  which  this  law  is  enjoined  we  find  in 
•ur  own  breasts,  and  in  the  will  of  God.  In  the  dictates 
of  conscience  Ave  perceive  an  authority  that  is  fitted  to 
command,  as  well  as  a  power  that  is  able  to  punish. — The 
authority  of  conscience,  however,  is  evidently  subordi- 
nate, and  points  to  the  higher  control  that  is  placed  in  the 
will  of  God,  to  which  it  continually  refers  us. — The  moral 
law,  as  I  have  said,  possesses  an  intrinsic  and  immutable 
excellence  on  account  of  which  it  justly  claims  our  sub- 
mission and  respect ;  but  it  would  be  dead  as  to  any  au- 
thority to  compel  obedience,  without  a  divine  legislator 
to  impose  it  by  his  command,  and  enforce  it  by  his  power. 
Nothing  but  ivill,  armed  with  the  'power  to  reward  or 
punish,  can  oblige. 

Our  next  enquiry,  then,  is,  what  sanctions  the  Supreme 
Legislator  has  annexed  to  his  law  ?  They  are  commonly 


S7 

divided  into  those  of  duty,  and  interest.  And  under thcs« 
beads,  with  a  little  latitude  of  expression,  they  might  all, 
perhaps,  without  difficulty  be  arranged.  A  more  obvious 
and  comprehensive  division,  however,  I  shall  take  the 
liberty  to  adopt  from  my  immediate  predecessor,  the  late 
Dr  Witherspoon,  who  classed  them  under  the  heads  of 
conscience,  of  religion,  and  of  general  interest ;  with  a  very 
summary  explanation  of  which  I  shall  present  you. 

The  sanction  of  conscience  consists  in  the  internal 
satisfaction,  and  self-approbation  which  good  men  per- 
ceive in  upright  conduct,  and  in  the  compunction,  re- 
morse, and  fear  which  usually  follow  criminal  actions. — 
The  sanctions  of  religion  consist  in  the  natural  hope  of 
the  favor  of  God  which  accompanies  virtue,  and  the  ap- 
prehensions of  his  displeasure  which  often  mingle  them- 
selves with  vice  and  disturb  its  tranquility.  But  the  sanc- 
tions of  religion  reach  beyond  the  present  life.  And,  al- 
though, in  a  work  like  this,  we  are  not  permitted  to  avail 
©urselves  of  the  lights  of  revelation,  yet  the  belief  of  a 
future  judgment,  and  our  natural  anticipations  of  some 
righteous  retribution  to  virtue  and  to  vice,  seem  to  an- 
nounce the  existence  of  a  law  in  the  human  breast,  w  hich 
is  found  in  all  nations,  which  carries  forward  the  hopes 
and  fears  of  mankind  to  an  after-state  of  existence.  And, 
eften,  its  influence  upon  their  actions,  is  not  the  less  pow- 


S3 

erful,  because  its  ideas  are  obscure ;  and,  to  the  vicious* 
especially,  it  presents  only  an  unknown  terror. 

The  question  has  been  seriously  agitated  whether  rea- 
son and  nature  direct  mankind  to  look  forward  to  a  cor- 
rective and  therefore  only  temporary  suffering  for  vice  in 
a  future  state,  or  to  a  vindictive  justice,  which  will  conse- 
quently be  eternal. — The  former  opinion  was  embraced 
by  the  disciples  of  Pythagoras,  who  brought  his  doctrine 
from  India. — The  latter,  especially  with  regard  to  certain 
grades  of  crime,  seems  to  have  been  the  more  general 
sentiment  of  mankind  throughout  the  world,  pagans,  as 
well  as  christians.  They  have. been  probably  led  to  the 
idea  of  eternal  sufferings  from  the  strong  compunctions 
of  guilt  which  impart  strong  and  fearful  apprehensions  of 
punishment,  but  suggest  no  definite  period  to  it.  The 
idea,  doubtless,  was  strengthened  by  observing  that  many 
crimes  draw  after  them,  even  in  the  present  world,  irre- 
parable evils.  No  repentance  can  efface  the  stain  which 
is  imprinted  on  the  character  by  some  infamous  offences, 
nor  repair  the  ravages  committed  on  the  constitution  by 
many  vices.  Seeing  these  calamities  endure  as  long  as 
life,  it  was  not  an  unnatural  apprehension  that,  hereafter, 
in  a  state  of  retribution,  they  would  be  continued  as  long 
as  the  existence  of  the  offender. 

The  last  sanction  which  has  been  stated  of  virtue,  or 
the  moral  law,  is  general  interest :  that  is,  the  happiness 


89 

which  usually  accompanies  virtuous  dispositions,  and  con- 
duct—the unhappiness  which  naturally  follows  vicious 
pursuits,  and  dishonest  aims. 

There  are,  doubtless,  many  examples  of  virtue  which 
has  deeply  suffered  by  misfortune.  Misrepresentation 
may  take  from  merit  the  esteem  of  the  world ;  an  adher- 
ence to  truth  may  sometimes  overwhelm  an  honest  man 
through  the  artifices  of  a  powerful  rival.  On  the  other 
hand,  momentary  advantages  may  now  and  then  seem  to 
be  gained  by  a  departure  from  moral  principle.  But  it 
may  be  laid  down  as  a  sure  and  general  maxim  that  a 
prudent  and  steady  course  of  virtue  is  calculated,  by  a  na- 
tural influence,  to  produce  inward  peace  and  tranquility 
of  mind,  and  to  lead  to  public  respect.  The  occasional 
advantages  derived  from  vice  are  more  apparent  than 
real ;  and  seldom  are  they  durable.  When  a  man  is  once 
known  to  act  from  corrupt  principles,  they  generally  de- 
feat his  aims;  or,  if  he  succeeds,  he  loses  in  reputation 
and  peace  of  mind,  more  than  he  acquires  in  wealth  and 
power.  Besides,  great  affluence,  or  extent  of  power,  al- 
though they  may  often  be  productive  of  many  conveni- 
ences, are  not  necessarily  connected  with  happiness. 
True  happiness,  on  the  other  hand,  most  certainly  arises 
from  the  inward  peace  and  self-approbation  of  conscious 

rectitude  and  virtue  5— from    moderate,   constant,   and 
voi.  ii.  m 


90 

useful  employment;  and  from  the  regular  and  virtuous 
exercise  of  all  the  powers  and  faculties  of  our  nature, 
and  especially  of  the  social  and  benevolent  affections  of 
the  heart. 

Having  treated  of  the  nature,  and  excellence  of  virtue 
and  the  sanctions  which  the  Deity  has  annexed  to  its 
law,  particularly  in  the  tranquility  and  happiness  which 
it  is  fitted  to  impart  to  the  virtuous  mind,  this  seems  to  be 
the  proper  place  to  introduce  to  your  notice  the  famous 
question  which  was  so  earnestly  discussed  in  the  ancient 
schools; — What  is  the  chief  good? — Having  feeble  and 
obscure  conceptions  of  the  felicity  arising  from  the 
genuine  affections  of  religion,  and  the  clear  and  certain 
hopes  of  immortality,  as  they  are  understood  by  a 
christian,  the  great  enquiry  of  their  philosophers  was, 
in  what  manner  existence,  with  the  present  powers, 
tendencies,  and  prospects  of  human  nature,  might  be  best 
enjoyed?  And,  on  this  subject,  after  the  doctrines  of  the 
Pythagorean  school,  which  entertained  many  pure  and 
excellent  principles  of  morality,  blended  with*  their  im- 
perfect ideas  of  a  future  existence,  we  perceive  three 
principal  sects  which  divided  the  empire  of  philosophy, 
the  Epicureans,  the  Stoics,  and  the  Peripatetics. 

The  Epicureans,  who  derived  their  name  from  their 
founder,   maintained  that  animal,  and   sensible  enjoy- 


01 

inents,  the  gratifications  of  our  natural  appetites,  and 
our  external  senses,  form  not  only  the  chief,  but  the  sole 
happiness  of  man ;  and  that  what  are  called  the  intel- 
lectual pleasures  are  only  the  recollections  of  these, 
Which  then  become  somewhat  more  refined  through  the 
influence  of  the  imagination.  Epicurus  himself  was  a 
man  of  moderate  desires,  and,  consequently,  maintained 
that  moderation  in  every  indulgence  is  necessary  to  true 
enjoyment. — His  followers,  however,  availing  themselves 
of  the  literal  and  obvious  interpretation  of  his  general 
principle,  abused  his  doctrine  to  the  grossest  sensuality. 
And  their  opinions  being  so  much  accommodated  to  the 
inclinations  of  the  greater  portion  of  mankind,  they 
became,  in  time,  the  most  numerous  sect  of  antiquity. 
For  the  same  reason,  this  philosophy  will  always  practi- 
cally flourish  among  a  luxurious  people,  and  in  a  de- 
clining and  corrupted  state  of  public  manners,  in  every 
nation. 

The  Stoics,  who  borrowed  their  denomination  from 
the  portico  in  which  their  discussions  were  held,  main- 
tained that  true  happiness  lies  only  in  the  mind,  and  is 
not  affected  by  external  circumstances.  They  endeavored 
to  extinguish  all  the  finest  sensibilities  of  human  nature, 
from  the  supposition  that  they  serve  only  to  effeminate 
the  soul.  It  was  their  leading  maxim  that  there  is 
nothing   good  but  virtue,   and   nothing   evil   but  vice. 


92 

Consequently  their  vise  man  had  no  wants.  He  pos- 
sessed in  his  own  mind,  and  in  the  acquirements  of  phi- 
losophy, all  that  is  great  and  good  in  human  nature. 
Their  virtue,  however,  was  proud,  aud  too  independent. 
It  excluded,  almost  entirely,  the  gentle  sympathies,  and 
benevolent  affections  of  the  heart.  Their  philosophy 
was  more  fitted  to  generate  heroes  than  to  form  amiable 
and  useful  men. 

The  Peripatetics,  who  received  this  denomination 
from  their  constant  practice  of  walking  while  they  com- 
municated and  received  instruction,  pursued  a  middle 
path  between  these  extremes;  and  one,  I  believe,  more 
conformed  to  nature  and  reason  than  either.  They  did 
not  despise  the  moderate  gratifications  of  sense ;  they 
cultivated  the  liberal  pleasures  of  imagination  and  taste; 
they  were  not  indifferent  to  the  advantages  of  fortune, 
provided  they  were  acquired  with  fairness  and  honesty. 
But  they  held  virtue  to  be  the  chief  good.  And  their 
virtue  was  sociable,  benevolent,  useful.  This  philosophy 
agrees  with  the  account  of  the  nature  of  virtue  which  I 
have  already  given.  It  is  the  exercise  of  all  the  powers 
of  our  nature  in  their  proper  proportions,  and  the  just 
subordination  of  the  inferior  to  the  superior  principles.  It 
is  the  preservation  of  every  faculty  in  its  greatest  vigor 
and  perfection,  and,  thereby,  maintaining  it  always  in  a 
slate  of  readiness  not  only  to  be  applied  to  its  best  uses, 


93 

but  to  derive  from  it,  its  highest  enjoyments. — Over  all 
presides  the  moral  faculty  both  to  direct  their  exercises, 
and  to  assist  their  enjoyments;  being  at  the  same  time, 
itself  the  source  of  the  purest  and  suhlimest  pleasures. 
—So  that,  according  to  this  theory,  taking  virtue  as  a 
general  rule  of  action,  and  judging  from  its  general 
effects  on  individuals,  communities,  and  nations,  if  it 
cannot  be  pronounced  the  only  good,  it  is  manifestly  the 
chief  good.   It  is  the  common  interest  of  the  world. 

Such  are  the  grounds  on  which  I  have  made  general 
interest  a  sanction  of  the  moral  law.  I  confess  that  the 
depravity  of  human  nature,  and  the  imperfection  of 
human  virtue  in  the  best  of  men  in  this  world,  would 
render  this  sanction  too  feeble  if  it  were  not  aided  by  that 
of  religion.  But  religion,  conscience,  and  general  inter- 
est, taken  together,  form  one  that  will  necessarily  pos- 
sess great  force  on  every  serious  and  reflecting  mind. 


9* 
LECTURE  XVIII. 

OUR  DUTIES  CLASSED  UNDER  THEIR  GENERAL  HEADS. 
CONTENTS. 

The  ancients  having  no  system  of  public  and  popular 
moral  instruction,  theology,  and  morals,  were  necessa' 
rily  taught  in  the  schools  of  their  philosophers. — The 
details  on  these  subjects  were  therefore  more  ample 
than  are  usually  found  in  the  modern  systems  of  phi- 
losophy— Morality  divided  in  different  ways*— first 
according  to  the  principles  from  which  it  springs — and 
secondly  according  to  the  objects  on  which  it  terminates. 
—The  former,  the  division  of  the  ancients,  who 
arranged  the  virtues  under  the  heads  of  justice,  pim- 
dence,  temperance,  and  fortitude— The  analysis  of 
these — The  latter  division  more  commonly  used  by  the 
moderns, — including  the  duties  which  tve  owe  to  God- 
to  our  fellow-men,^ — and  to  ourselves. — Our  duties  to 
God,  internal  and  external — the  internal,  love,  rever- 
ence, resignation — The  external,  visible  worship,  the 
forms  of  which  various,  but  its  essence  embracing 
adoration,  thanksgiving,  confession,  prayer — Objec- 
tions answered. — Of  our  duties  to  our  fellow  men — of 
our  duties  to  ourselves. 


95 

AMONG  the  ancient  philosophers  the  principal  por- 
tion of  their  moral  systems  was  occupied  in  theological 
discussions,  and  in  the  detail  of  duties  resulting  from  the 
various  relations  of  man,  domestic,  social  or  civil.  The 
national  religion,  consisting  chiefly  in  a  multifarious 
ceremonial,  and  little  in  doctrine,  or  moral  precepts,  had 
established  no  means  of  public  and  general  instruction 
for  the  people  in  the  principles  of  piety,  or  morals,  such 
as  christian  nations  enjoy  in  their  churches.  The  system 
of  duty  was  taught  only  in  their  schools.  Its  details, 
therefore,  were  necessarily  explained  with  great  minute- 
ness, and  extent  in  the  discourses  of  their  philosophers.* 
But  among  christians  the  practical  duties  of  life,  as  they 
respect  either  religion,  or  society,  are  so  constantly 
inculcated  from  the  pulpit,  and  are  so  perfectly  under- 
stood by  all  classes  of  the  people,  that  this  part  of  our 
philosophieal  course  is,  in  consequence,  greatly  abridged. 
All  that  I  shall  aim  at,  therefore,  will  be  to  reduce  our 
duties  under  general  classes,  so  as  to  present  a  clear  and 
systematic  view  of  them ;  and  to  exhibit  their  general 
principles,  so  that  the  grounds  and  reasons  of  each  duty 
may  be  better  understood ;  and  our  ideas  concerning  it 
may,  in  some  dubious  cases,  be  rendered  more  precise 
and  determinate. 

*  Of  which  we  have  admirable  examples  in  the  treatises  of 
M.  T.  Cicero,  de  officiis,  et  de  natura  deorum. 


96 

The  duties  of  morality  may  be  divided  in  different 
ways,  either  according  to  the  principles  from  which  they 
spring,  and  which  govern  their  exercise,  or  according  to 
the  objects  on  which  they  terminate.  The  former  prin- 
ciple of  division  was  generally  adopted  by  the  ancient 
philosophers,  who  classed  them  under  the  heads  of 
justice,  prudence,  temperance,  and  fortitude.  The  latter 
is  more  commonly  employed  by  christian  writers,  who 
arrange  them  under  the  heads  of  the  duties  which  we 
owe  to  God,  to  our  fellow-men,  and  to  ourselves. — I  shall 
place  before  you  a  very  brief  view  of  each  of  these 
systems. 

Justice,  according  to  the  interpretation  of  that  term 
by  the  ancients,  was  used  in  a  much  more  comprehensive 
signification  than  it  is  by  modern  writers ;  and  was  made 
to  embrace  the  duties  of  benevolence,  as  well  as  those  of 
strict  equity.  Their  rule  of  justice,  although  noAvhere  so 
clearly  and  concisely  expressed  in  their  writings,  as  in 
the  precept  of  our  Saviour,  was  in  substance  the  same; 
— "  whatsoever  ye  would  that  men  should  do  unto  you, 
do  ye  even  so  to  them."  Justice,  therefore,  according  to 
their  ideas,  included  the  duties  of  innocence,  which  con- 
sists in  abstaining  from  injury  to  others ; — of  equity, 
which  is  returning  an  equivalent  for  the  good  we  have 
received; — and  of  beneficence,  which  implies  conferring 
such  favors  on  others  as,  in  exchange  of  circumstances, 


97 

we  could  reasonably  desire  from  them.  In  their  moral 
commentaries,  likewise,  the  parental  and  filial  duties, 
piety,  friendship,  gratitude,  candor,  liberality,  charity, 
and  even  civility,  and  politeness,  were  all  comprehended 
under  the  head  of  justice.  And  to  the  same  comprehen- 
sive class  were  referred  all  our  public  duties  as  citizens, 
or  as  magistrates,  as  well  as  our  social  and  domestic. 

It  is  a  principle  generally  received,  that  the  duties  of 
justice,  may  he  made  the  objects  of  positive  institution, 
and  of  penal  laws.  Those  of  innocence  and  equity  may 
certainly  be  required  by  compulsory  authority,  and  their 
violation  punished  by  the  power  of  the  magistrate.  But 
as  those  of  beneficence,  if  they  are  to  be  included  under 
the  head  of  justice,  cannot  be  designated  by  such  definite 
limits,  it  would  not  be  safe  to  entrust  their  regulation  or 
their  punishment  to  any  human  tribunals.  They  can 
properly  be  enjoined,  therefore,  only  under  the  sanctions 
of  conscience  and  religion. 

Prudence  may  be  defined  to  be  the  pursuit  of  objects 
according  to  their  worth,  and  the  application  of  the  fittest 
means  to  arrive  at  their  possession. — It  calls  into  action 
the  talents  of  judgment,  and  discretion,  in  forming  a  just 
estimate  of  the  value  of  different  objects  which  solicit 
our  attention,  a  sound  consideration  of  the  natural  con- 
nection of  causes  and  effects,  with  a  quick  perception  of 

vol.  ii.  n 


9S 

occasion  and  opportunity,  and  a  steady  firmness  of  mind 
in  seizing  and  applying  them  to  their  proper  ends.  Pru- 
dence has  been  pronounced  by  many  writers  to  be  rather 
a  natural  talent  than  a  moral  quality.  And  certainly, 
some  men,  by  their  constitutional  organization,  possess 
more  than  others  that  calm  judgment  and  discretion 
which  is  necessary  to  their  framing  wisely  the  plans  of 
conduct,  and  that  foresight,  firmness,  and  decision  which 
are  requisite  to  carrying  them  successfully  into  execution. 
But  it  is,  like  most  other  useful  qualities,  capable  of 
being  greatly  improved  by  habitual  reflection,  and  a 
vigilant  self-command.  And  it  is  so  intimately  connected 
with  morals,  and  so  necessary  to  the  successful  issue  of 
every  important  design,  that  true  virtue  will  ever  aim 
assiduously  to  cultivate  it.  A  man  who  is  deficient  in  this 
talent  can  seldom  act  to  any  great  or  useful  purpose. 
He  may  often  defeat  the  best  intentions,  and  derange  the 
most  wholesome  plans;  and  can  rarely  acquire,  aud  never 
preserve,  true  respectability  of  character.  An  imprudent 
man  is  liable  to  embarrass  himself  in  the  most  dishonora- 
ble diffculties,  which  present  almost  irresistable  tempta- 
tions to  crime.  And  often,  without  foreseeing  the 
precipice  on  which  he  is  running,  he  may  throw  into 
confusion  his  own  most  important  interests,  or  the 
interests  of  his  dearest  friends.    In  proportion,  then,  a? 


99 

imprudence  is  a  vice,  is  the  merit  of  cultivating  thf 
opposite  virtue. 

Imprudent  men  we  sec  prone  to  impute  the  disastrous 
consequences  of  their  own  neglect,  precipitancy,  or  mis- 
management to  the  arrangements  of  divine  providence; 
and,  with  a  mistaken  piety,  profess  to  trust  in  providence 
to  relieve  them  from  the  effects  of  their  own  indiscretions. 
—This  arises  from  a  most  erroneous  conception  of  the 
universal  government  of  the  Supreme  Being,  as  if  it  were 
a  vacillating,  and  mutahle  disposition  of  events,  liahle  to 
be  disarranged  according  to  the  exigencies  and  desires  of 
men.  Divine  providence,  on  the  contrary,  proceeds  on 
fixed  and  invariable  laws,  of  which  prudence  may  avail 
itself,  as  far  as  they  are  known,  for  its  own  interest;  but 
which  never  change  with  a  weak  indulgence  in  compassion 
to  the  errors  of  human  folly;  Men  sometimes  mistake 
the  regular  order  of  events,  where  the  concatenation  of 
their  causes  is,  through  ignorance,  or  inattention,  not 
observed,  for  immediate  and  extraordinary  interpositions 
of  Heaven.  Such  fancies  do  no  honor  either  to  religion 
or  philosophy. 

The  general  virtue  of  prudence  may  be  regarded  as 
including  the  following  considerations : — In  the  first 
place,  a  decent  respect  in  our  conduct,  and  the  declara- 
tion of  our  opinions,  to  the  known  sentiments  and  feelings 


100 

of  others ;  which  may  conciliate  friendship,  and  mutual 
civility,  that  direct  collision,  even  on  trivial  subjects, 
tends  very  much  to  destroy. — In  the  next  place,  a  scrupu- 
lous attention,  in  our  manners,  and  in  the  temper  which 
we  manifest  in  our  social  intercourse,  to  what  our  period 
of  life,  and  station  in  society  requires  or  permits.  There 
is  a  wide  difference  between  the  decencies  and  proprieties 
which  are  becoming  in  age  or  in  elevated  rank,  and  those 
which  are  demanded  of  youth  or  of  dependence. — A  no 
less  important  consideration,  in  the  analysis  of  this  virtue, 
is  a  judicious  ngard  to  economy  in  the  expenditures  of 
living,  according  to  the  certain  means  which  we  enjoy. 
If  this  is  requisite  to  the  fulfilment  of  the  duties  of 
justice  and  benevolence,  it  is  equally  necessary  to  the 
freedom  and  independence  of  mind  which  every  virtuous 
citizen  should  study  to  preserve. — To  complete  that 
character  of  prudence  which  is  requisite  to  eusure  success 
to  the  general  designs,  and  especially  the  important  en- 
terprizes  of  life,  we  should  combine,  in  the  character, 
and  habit  of  the  mind,  two  apparently  opposite  quali- 
ties, which,  however,  are  necessary  to  impart  to  each 
other  a  mutual  and  solid  support, — decision,  and  caution. 
For  without  decision,  caution  becomes  feebleness  or 
timidity  ;  and  without  caution,  decision  is  apt  to  degen- 
erate into  rashness  or  obstinacy.  By  the  former  I  mean 
that  prompt  and  resolute  choice  of  conduct,  which  seizes 


101 

•ccasion  at  the  proper  moment  to  ensure  success,  when 
indecision  would  be  loss  of  opportunity.  And  by  the 
latter,  that  calm  and  deliberate  judgment  which  foresees 
and  provides  against  all  difficulties,*  which  weighs  well 
the  characters  of  those  with,  or  against  whom  we  act; 
and  balances  the  magnitude  and  importance  of  every 
undertaking  with  our  own  talents. 

In  this  division  of  the  virtues,  in  the  next  place,  tem- 
perance implies,  not  merely  abstinence  in  the  use  of  meats 
and  drinks,  but  moderation  in  all  animal  enjoyments. 
In  the  idea  of  temperance,  likewise  was  included,  ac- 
cording to  the  habits  of  thinking  among  the  ancients,  that 
constant  and  useful  employment,  and  that  degree  of  active 
and  strenuous  exercise,  which  are  necessary  to  promote 
the  health  and  vigor  of  the  body,  and  to  subdue  its  pas- 
sions and  appetites  into  a  just  subserviency  to  reason. 

In  the  same  system,  in  the  last  place,  fortitude  com- 
prizes the  virtues  of  patience,  intrepidity,  and  constancy. 
By  patience  we  mean  firmness  in  enduring  suffering, — by 
intrepidity,  courage  and  resolution  in  encountering 
danger,-—and  by  constancy,  that  strength  of  mind  which 
enables  a  virtuous  man  to  persevere,  in  opposition  to 
difficulties,  or  temptations,  in  a  course  which  he  has  once 
chosen  with  wisdom. 


102 

Fortitude  has,  like  prudence,  been  regarded  by  many 
writers  as  a  natural  rather  than  a  moral  quality;  and 
depending  chiefly  on  a  certain  constitution  of  nerves. 
Nature  has,  undoubtedly,  given  to  some  men  a  greater 
constitutional  firmness  of  mind,  and  hardiness  of  enter- 
prize,  than  to  others;  but  a  composed  courage  in  the 
midst  of  dangers,  and  an  unshaken  constancy  in  the 
midst  of  sufferings,  are  qualities  which  may  be  acquired 
by  a  virtuous  energy  of  soul.  And  much  of  the  dignity 
and  usefulness  of  life  depends  upon  their  cultivation. 
Native  timidity  may  be  overcome,  by  proper  culture, 
especially  if  united  with  the  experience  of  suffering  and 
danger,  which  ought  always,  perhaps,  to  enter  into  the 
plan  of  a  wise  and  virtuous  education.  The  weakest  na- 
tures have  been  enabled,  by  the  power  of  religion,  to 
endure  with  firmness  the  greatest  evils;  and  intrepidity 
and  courage  may  be  acquired,  of  which  we  have  many 
examples  in  the  school  of  the  Stoics,  by  the  force  of 
principle  and  habit.  And  I  doubt  not,  if  Demosthenes 
had  taken  as  much  pains  to  cultivate  the  intrepidity  and 
constancy  of  his  mind,  as  he  did  to  improve  Ids  eloquence, 
he  might,  instead  of  being  reproached  for  his  cowardice 
at  Cherona,  have  become  as  great  a  soldier  as  he  was 
an  orator. 

From  this  analysis  of  the  virtues  made  by  the  ancients, 
it  is  obvious  that,  under  their  fear  heads,  may  be  em- 


103 

braced  all  the  practical  duties  of  life,  with  all  the 
speculative  questions  which  philosophers  have  raised 
©n  the  theory  of  virtue. 

•I  am  next  to  consider  the  more  modern  division  of 
duty,  as  its  objects  are  different ;  God,  our  fellow  men, 
and  ourselves, 

OF  OUR  DUTIES  TO  GOD. 

Our  duties  to  God  may  be  divided  into  the  external, 
and  the  internal;  or  into  those  that  are  general,  and 
those  that  are  particular.— Our  general  duties  embrace 
the  whole  compass  of  piety  and  virtue;  because,  as  they 
constitute  the  moral  law  of  the  universe  prescribed  hy 
God,  conformity  to  their  dictates  is  justly  regarded  as 
obedience  to  him.  The  particular  duties  terminate  im- 
mediately on  God  as  their  object,  and  include  both  the 
devout  affections  of  the  heart,  and  the  external  expres- 
sions of  those  affections.  The  internal  affections  which 
are  due  to  God,  and  from  which,  as  from  their  natural 
source,  flow  all  the  streams  of  pious  obedience  in  the 
life,  are  love,  reverence,  and  resignation.  Love  is  ths 
active  spring  of  universal  obedience.  To  be  sincere  it 
ought  to  be  supreme;  and  is  most  perfectly  expressed  in 
the  injunction  of  the  sacred  scriptures;  thou  shalt  lore 
the  Lord  thy  God  ivith  all  thy  heart,  with  all  thy  &oul, 
with  all  thy  strength,  and  ivith  all  thy  mind.  This  affec- 


tion  respects  all  the  attributes  of  the  Deity,  but  chiefly 
his  moral  perfections,  and  especially  that  infinite  good- 
ness on  which  we,  and  all  tilings  do  constantly  depend. 

Reverence,  the  next  of  our  internal  duties,  is  less  #n 
active  than  a  restraining  principle.  It  is  calculated  to 
impose  a  salutary  check  on  the  passions  of  mankind,  sur- 
rounded and  stimulated  as  they  constantly  are  by  pow- 
erful temptations  to  vice.  This  affection  has  respect 
chiefly  to  the  infinite  greatness,  wisdom,  power,  and  holi- 
ness of  God.  It  is  a  principle  essential  to  the  existence 
of  piety  and  virtue  in  creatures  so  imperfect,  and 
prone  to  evil  as  mankind.  From  the  profound  degree 
in  which-  it  prevails  in  a  pious  mind,  it  is  often  de- 
nominated, in  the  sacred  scriptures,  the  fear  of  God. 
This  is  a  virtue  which  was  held  in  peculiar  honor  in  the 
early  ages  of  the  Roman  commonwealth.  And  we  learn 
from  their  most  distinguished  writers,  that  they  regarded 
the  fear  of  the  Gods,  and  reverence  for  the  sacred  offices  of 
their  religion,  as  the  basis  of  the  public  virtue,  and  of  the 
prosperity  of  the  republic. — How  much  more  truth  and 
importance  should  be  attached  to  this  principle  in  an  en- 
lightened christian  country. 

Absolute  resignation  to  the  divine  will,  and  the  wise 
arrangements  of  providence,  I  have  mentioned,  in  the  last 
plaec,  as  belonging  to  our  internal  duties. — It  implies 


105  # 

entire  confidence  in  the  wisdom,  justice,  and  goodness  of 
the  Infinite  Mind,  and  a  deep  conviction  of  the  narrowness 
of  our  own  understanding,  and  the  imperfection  of  our 
own  views  as  to  what  is  good  or  ill  for  us.  Resignation, 
resting  on  these  principles,  begets  not  only  a  grateful 
acknowledgment  of  the  manifold  blessings  of  divine 
providence,  but  a  submissive  acquiescence  in  the  will  of 
Heaven  under  its  most  afflictive  dispensations ;  believing 
that,  although  we  may  not  be  able  to  discern  their  ultimate 
relations  to  any  beneficent  end,  either  to  ourselves,  of 
others,  yet  are  they  all  reasonable  and  just,  and  good; 
and  necessarily  springing  out  of  the  all- wise  arrange- 
ments of  the  universal  system  under  the  government  of 
God. — This  disposition  of  mind  is  equally  opposed  to  all 
discontent  and  repining  at  the  course  of  providence,  and 
to  all  vain  reliance  upon  its  aids  while  Ave  are 
negligent  of  our  own  duties;  it  tends  to  produce  that 
placid  serenity  of  soul  so  becoming  the  character  of 
resigned  piety,  and  to  awaken  the  active  and  prudent 
exertions  which  virtue  requires  of  every  good  man,  in 
dependence  on  God,  to  improve  the  felicity  of  his  con- 
dition, and  his  honorable  standing  in  life. 

-    Our  external  duties  comprize  every  decent  outward 

expression  of  the  inward  and  pious  sentiments  of  the 

heart.   They  are  all  comprehended  under  the  general 
vol,  ii.  © 


0  106 

name  of  divine  worship,  for  which,  however,  natural 
reason  has  not  prescribed  any  precise  and  definite  form. 
Different  nations,  and  different  sects  of  religion,  have 
each  adopted  a  peculiar  ceremonial  for  itself.  No  sanctity 
ought  to  be  ascribed  to  rites  exclusively  of  the  affections 
which  they  are  designed  to  assist ;  or  any  farther  than 
they  are  proper  expressions  of  the  devout  dispositions  of 
the  soul.  But  all  rites  deserve  to  be  regarded  with 
respect  which  custom  has  sanctified  among  any  people, 
and  has  so  associated  with  their  religious  ideas  as  to  be 
to  them  the  most  serious  and  affecting  expression  of  their 
devotional  exercises.  In  considering  the  general  question 
of  the  utility  of  rites  and  forms  in  religion,  and  how  they 
may  be  applied  in  the  most  effectual  manner  to  answer 
the  design  of  impressing  the  heart  in  divine  worship,  and 
aiding  its  pious  emotions,  reason  will  decide  that  the 
ceremonial  ought  to  be  neither  too  simple,  nor  too  mul- 
tifarious, or  splendid.  The  mass  of  mankind  are  so  much 
governed  by  sensible  impressions,  as  seldom  to  be  able  to 
support  with  proper  fervency,  a  religion  that  aims  to  be 
wholly  intellectual,  and  scorns  any  alliance  with  the 
senses;  on  the  other  hand,  the  senses  are  apt  to  be  so 
much  amused  with  a  ceremonial  too  splendid  or  multifa- 
rious, as,  in  time,  to  exclude  the  heart  and  understanding 
from  divine  worship,  and  to  substitute  in  its  room,  only  a 
frivolous  superstition. 


i 


10.7 

The  essential  parts  of  a  rational  worship,  in  whatever 
ceremonies  it  is  clothed,  are  adoration,  thanksgiving,  con- 
fession, and  prayer.  Adoration  relates  to  (he  infinite  per- 
fections of  the  Deity  for  which  we  ought,  in  devotion,  to 
feel  and  express  the  highest  veneration.  Thanksgiving  is 
employed  in  expressing  our  grateful  acknowledgment 
of  those  mercies  which  we  continually  receive  from  him. 
Confession  respects  our  manifold  offences,  and  omis- 
sions of  duty.  And,  finally,  prayer  regards  those  mercies 
of  which  we  have  need,  and  which  we  ought  humbly  and 
submissively  to  ask  of  him,  either  for  ourselves,  or  for 
others. 

These  duties,  being  continually  explained  and  in- 
culcated in  the  public  institutions  of  religion,  are  so  gen- 
erally understood  as  not  to  require  any  further  illustra- 
tion in  this  place.  Two  objections,  however,  have  been 
so  plausibly  urged  against  the  duty  of  divine  worship  in 
general,  as  it  has  been  just  stated,  that  they  ought  not, 
perhaps,  to  pass  without  a  particular  answer. 

It  is  said,  in  the  first  place,  to  convey  an  unworthy  idea 
of  the  Deity  to  suppose  that  he  derives  pleasure  from 
hearing  his  perfections  repeated,  or  his  praises  extolled 
by  mortals,  in  acts  of  adoration,  as  if,  by  such  adulatory 
addresses,  his  displeasure  could  be  soothed,  or  his  mercy 
bribed — It  is  equally  unworthy  the  divine  majesty,  it  is 


10S 

alledged,  to  believe  that  humiliating  confessions  from 
such  imperfect  beings  can  be  acceptable  to  him  who 
already  knows  and  pities  all  their  errors;  or  that  he  can 
require  of  them  formal  acknowledgments  for  acts  of 
beneficence  which  it  is  agreeable  to  his  nature  to  bestow, 
and  for  which  no  acknowledgments  can  make  any  re- 
quital. 

To  these  unfair  observations  it  may  justly  be  replied, 
that  it  is  an  essential  law  of  our  nature  that  all  high  sen- 
timents, or  strong  affections,  necessarity  seek  for  some 
means  by  which  to  express  themselves.  If,  therefore,  we 
feel  as  virtuous  and  pious  men  ought  to  feel  towards  the 
author  of  our  being,  to  check  this  dutiful  expression  of 
our  emotions  would  be  to  stifle  the  most  reasonable  im- 
pulses of  the  heart;  and  not  to  feel  them  would  be  the 
proof  of  a  cold  and  corrupted  soul. 

I  add,  that  the  most  natural  and  laudable  affections, 
when  they  are  suppressed,  and  are  entirely  locked  up 
within  the  heart,  necessarily  languish,  and,  at  length, 
cease  to  be  felt.  The  strong  and  ingenuous  emotions  of 
unfeigned  piety  will  seek  for  some  reasonable  mode  of 
external  expression,  and  the  repeated  expression  of  them 
in  the  acts  of  a  visible  worship  will  reciprocally  give 
strength  to  the  inward  principles  from  which  they  flow. 
An  external  worship  then  is  founded  on  principles  of  tbfc 


109 

soundest  reason,  and  most  conformable  to  the  laws  of 
our  moral  nature.  It  cannot,  by  any  person  who  thinks 
wisely  of  the  divine  nature,  be  supposed  to  be  enjoined 
by  the  infinite  mind  for  any  gratification  which  he  re- 
ceives from  the  praises,  or  prostrations  of  a  being  so 
feeble  and  imperfect  as  man.  It  can  arise  only  from 
that  infinite  wisdom  and  benevolence  which  requires  our 
worship  for  its  own  essential  rectitude,  and  for  its  own 
beneficial  influence  in  cultivating  in  the  human  heart  the 
affections  and  habits  of  virtue  and  piety  for  which  it  is 
so  admirably  fitted.  For  adoration  of  the  divine  perfec- 
tions, while  it  impresses  the  pious  mind  with  an  awful 
reverence  of  the  Deity,  tends  to  elevate  the  tone  of  its 
moral  feelings,  and  to  assimilate  them  to  the  purity  of  the 
object  of  its  worship.— -The  grateful  recollection  of  the 
divine  mercies  in  the  immediate  presence  of  God,  serves 
to  confirm  the  affectionate  purposes  of  duty  and  obedience 
to  him.— On  the  contrary,  the  penitent  confession  of  sin 
helps  strongly  to  arm  the  soul  against  its  own  weakness, 
and  its  unholy  passions.  And  finally,  the  supplications 
which  we  address  to  the  Father  of  mercies  for  the 
blessings  which  we  need,  either  for  the  present  life,  or 
in  the  hope  of  a  better  existence,  remind  us  continually 
of  our  dependence  on  him  for  all  things,  and  awaken,  by 
that  remembrance,  the  profoundest  sentiments  of  piety. 


110 

The  second  objection,  which,  perhaps,  is  more  plausi- 
ble, and  seems  supported  on  stronger  metaphysical 
ground,  is  directed  against  the  efficacy,  and,  consequent- 
ly, the  utility  of  prayer,  employed  as  a  mean  of  obtain- 
ing the  divine  favor  either  in  our  public,  or  private 
devotions. — The  order  of  the  universe,  it  is  argued,  and 
the  eternal  train  of  causes  and  effects  have,  from  the 
beginning,  been  fixed  by  infinite  wisdom.  And  the  laws 
of  wisdom  are  as  unchangeable  as  those  which  have  been 
ascribed  to  necessity,  or  fate. — Why  then,  it  is  demanded, 
should  we  pray  ?  If  pre-established  causes  naturally  co- 
operate to  the  production  of  the  event,  it  must  take  place 
independently  of  our  prayers.  If  otherwise,  we  pray  in 
vain.  The  breath  of  mortals  caunot  change  the  eternal 
order  of  things. — This  is  the  objection  placed  in  its 
strongest  point  of  light. — To  obviate  it,  let  it  be  observed, 
that  prayer  can  have  only  two  ends  in  view ;  to  cultivate 
the  moral  qualities  of  the  heart,  and  thereby  obtain 
those  spiritual  blessings  which,  in  the  order  of  provi- 
dence, are  connected  with  them;  and  to  procure  those 
natural  and  temporal  goods  which  we  solicit  in  prayer. 
To  obtain  the  former,  we  have  seen  that  prayer,  with 
every  other  part  of  divine  worship,  possesses  an  obvious 
and  acknowledged  influence.  The  stress  of  the  objection, 
therefore,  bears  upon  the  latter;  but  admits  of  this 
simple  and  unconstrained  solution.— From  the  superiori- 


Ill 

ty  of  intellect  to  matter,  and  of  the  moral  to  the  natural 
order  of  things,  there  is  the  highest  probability  that  the 
physical  has  been  created  wholly  in  subserviency  to  the 
moral  world.  If  this  principle  be  admitted,  will  it  not 
result  as  a  natural  consequence,  that  the  Creator  may 
have  so  adjusted  the  one  to  the  other,  that,  foreseeing 
the  sincere  and  reasonable  desires  of  good  men  who  are 
his  children,  the  order  of  causes,  and  the  train  of  events 
shall,  at  the  proper  time,  and  in  the  way  most  agreeable 
to  his  infinite  wisdom,  correspond  with  their  prayers  ? 

This  may  be  regarded  as  a  hypothetical  answer  to  the 
objection.  There  are  innumerable  occasions,  however, 
on  which  the  answer  may  be  drawn  from  the  plain  and 
obvious  course  of  nature.  How  often  do  the  events  of 
the  world  manifestly  depend  upon  moral  springs?  How 
often  do  we  see  the  fortunes  of  individuals  greatly  in- 
fluenced by  their  moral  character?  And  the  universal 
voice  of  history  has  almost  raised  it  into  a  maxim,  that 
the  prosperity  of  nations  is  intimately  linked  with  their 
virtue,  and  their  decline  as  certainly  associated  with  the 
corruption  and  disorder  of  the  public  manners.  When, 
therefore,  we  reflect  how  much  public,  and  individual 
manners  are  affected  by  the  healthful  state  of  religion, 
and  how  much  this  is  connected  with  the  purity  of  the 
public  worship,  and  the  sincerity  of  private  devotion, 
we  can  hardly  avoid  the  conclusion  that,  on  many  events, 


112 

prayers  offered  up  to  God  iu  sincerity,  with  fervency, 
and  perseverence,  have  an  influence  not  less  powerful, 
and,  often,  much  more  successful,  than  any  other  second 
Cause.  So  that,  whether  we  regard  the  wise,  and  eternal 
arrangements  of  providence,  or  the  known  and  fixed 
order  of  natural  and  moral  events,  the  result  still  re- 
curs, that  prayer,  far  from  being  an  unreasonable,  and 
hopeless  service,  not  only  has  a  natural  and  important 
influence  on  human  events,  but  may  have,  as  revelation 
assures  us  it  has,  a  positive  and  divine  efficacy.  And, 
indeed,  can  any  institution  be  more  just  and  equitable  in 
itself,  than  that  God  should  make  the  bestowment  of  the 
blessings  which  we  ask  in  prayer,  to  depend  upon  the 
existence  and  growth  of  those  pious  dispositions  which 
are  best  cultivated  in  these  devotional  exercises  ? 

OF  OUR  DUTIES    TO  OUR   FELLOW-MEN. 

Our  duties  to  our  fellow-men  include  a  greater  com- 
pass and  variety  than  those  which  terminate  immediately 
upon  God.  They  respect  the  infinite  relations  which 
subsist  among  mankind,  and  they  necessarily  occupy 
much  the  largest  portion  of  life.  There  is  scarcely  an 
action  we  perform  which  does  not  affect  some  of  these 
relations.  From  the  general  information  which  prevails 
in  a  country  like  ours,  continually  enlightened  by  the 
pulpit  on  the  practical  duties  of  society,  it  would  be 


113 

wholly  unnecessary,  in  this  place,  to  go  into  an  extensive 
detail  of  our  social  offices.  It  will  be  sufficient  to  suggest 
a  few  subdivisions  under  which  they  may  all  be  systemat- 
ically classed. 

The  first  and  most  general  of  these  divisions  may  be 
into  the  duties  which  are  negative;  consisting  merely  in 
abstaining  from  injury,  or  from  ever  inflicting  unneces- 
sary pain,— and  such  as  are  positive,  being  employed 
only  in  doing  actual  good. — Many  other  classes  of  practi- 
cal duty  might  admit  of  a  similar  division;  but  this,  on 
account  of  the  many  and  strong  passions  in  human  nature 
that  so  often  impel  men  to  mutual  injury,  seems  particu- 
larly to  require  it. 

The  positive  duties  of  this  class  may  all  be  ranked 

under  the  heads  of  justice,  and  beneficence.   But,  though 

so  simple  in  their  principles,  they  are  almost  infinitely 

diversified  in   their  details,    according   to  the  relations 

which  we  sustain  to  our  country — to  our  family — to  our 

vicinity — to  our  friends — to  the  objects  of  our  charity — 

to  those  who  are  invested  with  authority  over  us — or  who 

are  subjected  to  our  control — or,  finally,  according  to  our 

philanthropic    relations  to   mankind. — On   these   duties 

volumes  have  been  written;  libraries  have  been  filled; 

and  still  they  are  subjects  which  constantly  demand  our 
vol.  ii.  p 


Ill 

attention,  and  on  which  we  can  never  cease  to  be  active* 
and  to  learn. 

OF  OUR  DUTIES  TO  OURSELVES. 

The  duties  which  we  owe  to  ourselves  are  as  real,  and, 
in  many  respects,  as  important  as  those  of  any  other 
class.  On  these,  as  on  the  last,  I  shall  content  myself 
with  simply  enumerating  the  subdivisions  under  which 
all  tbe  particular  details  may  be  embraced.  They  relate 
to  self-preservation — to  self-enjoyment — to  self-interest 
— and  to  the  general  cultivation  and  improvement  of  our 
nature. 

Self-preservation  includes  the  care  of  health,  of  liberty, 
and  life.  He  is  culpable  who  neglects  his  health,  which 
ought  to  be  diligently  preserved  only  for  the  useful  and 
virtuous  purposes  of  living. — He  is,  perhaps,  more  culpa- 
ble who  barters  his  liberty  for  any  pretended  convenience, 
or  compensation,  or  who  does  not  strenuously  defend, 
when  it  is  attacked,  this  most  noble,  and  precious  preroga- 
tive of  our  nature.' — And  voluntarily  to  sacrifice  life,  or  un- 
necessarily to  hazard  it,  in  a  cause  that  is  not  worthy  the 
rational  and  moral  nature  of  man,  if  it  does  not  flow 
from  insanity,  is  an  evidence  of  a  mind  precipitate  and 
foolish,  and  utterly  void  of  virtuous  fortitude. 


115 

A  rational  self-enjoyment,  in  the  next  place,  every 
good  man  is  not  only  permitted  but  required  to  cultivate, 
in  order  that  he  may  be  rendered  more  grateful  to  his 
Creator,  by  moderately,  and  prudently  using  the  blessings 
of  divine  providence.  This  is  evidently  conformable  to 
the  design  of  the  Deity  in  our  creation,  and  harmonizes 
with  the  apparent  structure,  and  order  of  our  nature. 
But  in  using  this  flattering  privilege,  peculiar  caution  is 
requisite,  lest  the  force  of  self-love  should  urge  indul- 
gence beyond  that  restricted  and  frugal  boundary  at 
which  prudence,  and  virtue  should  arrest  it. 

Self-interest,  the  cultivation  of  which  belongs  to  this 
class  of  duties,  relates  to  necessary  provision,  and  com- 
fortable accommodation,  which  no  good  man,  under  any 
pretended  idea  of  benevolence  or  public  spirit,  ought  to 
neglect;  and,  in  a  more  extended  view,  it  relates  to  the 
favor  of  God,  and  to  eternal  felicity  in  a  future  world, 
which  should  be  the  first  concern  to  every  truly  wise 
man  in  the  present. 

The  general  cultivation  and  improvement  of  our  na- 
ture, which  I  enumerated  last  among  the  duties  which 
we  owe  to  ourselves,  has  for  its  objects,  as  I  have  men- 
tioned in  the  preceding  lecture,  our  bodily  powers,  the 
faculties  of  the  mind,  and  the  affections  of  the  heart. 
The  most  important  trust  which  our  Almighty  Creator 


116 

has  committed  to  man  as  a  moral  and  accountable  being, 
is  himself.  And  the  first  obligation  which  such  a  gift 
imposes  upon  him  is  to  carry  it  to  the  ultimate  perfec- 
tion of  which  it  is  susceptible. 

Such  is  a  very  brief  analysis  of  the  general  system  of 
our  duties,  but  sufficient,  perhaps,  to  present  to  a  studi- 
ous and  reflecting  mind  a  key  to  its  minute,  and  particu- 
lar details. 


117 


LECTURE  XIX. 


OF  (ECONOMICS. 

FIRS*  OF  MARRIAGE,  OF  DIVORCE,  OF  ILLECltlMAtE  CON- 
NEXIONS. 

CONTENTS. 

Of  marriage. — If  polygamy  be  prohibited  by  the  law  of 
nature? — Its  existence  before  the  christian  azra  not  in- 
consistent with  good  morals. — The  monogamic  institu- 
tion most  favorable  to  human  nature,  and  obligatory 
on  us  by  the  positive  institution  of  Christ,  and  by  the 
ivholesome  laics  of  our  country. — Jlnciently  marriage 
regarded  as  a  subject  entirely  of  civil  and  political 
regulation— This  principle  not  unfavorable  to  the 
strictest  rules  of  chastity  and  good  morals. — Of  divorce 
— Of  the  command  of  our  Saviour  respecting  repudia- 
tion.— The  perpetuity  of  the  marriage  contract  favor- 
able to  morals  and  happiness — Of  the  legitimate  causes 
of  divorce — They  ought  always  to  be  made  as  much  as 
possible  to  favor  the  weaker  scx.—Of  infidelity  to  mar- 
riage vows. — Of  obstinate  desertion. — Of  intoxication. 
— Of  cruel  treatment. — Of  contrariety  of  temper — Of 

incurable  diseases Of  mutual  consent Of  the  illegal 

commerce   of  the  sexes. — Its  pernicious  influence  on 


118 

society Its  criminality,  and  the  cruelty  of  Us  con- 
sequences, 

FAMILIES  being  the  elementary  portions  of  eivil 
society,  the  doctrine  of  osconomics  naturall;.  precedes 
that  of  politics.  The  domestic  relations,  which  are  the 
subjects  of  disquisition  in  this  branch  of  the  science,  are 
those  of  husband  and  wife,  of  parent  and  child,  of 
master  and  servant.  The  reciprocal  obligations  and  du- 
ties which  arise  out  of  these  relations  are  already  so 
well  understood  that  they  require  but  little  elucidation 
from  the  philosophical  chair.  On  these,  as  on  many 
other  practical  subjects  in  morals,  the  instructions  of  the 
church  have,  in  a  great  measure,  superseded  the  neces- 
sity of  those  of  the  school.  I  shall,  therefore,  confine 
my  enquiries,  or  observations,  concerning  them  chiefly 
to  a  few  speculative  questions  which  are  either  more 
doubtful  in  themselves,  or  have  been  rendered  so  by  the 
prejudices  under  which  they  have  been  viewed. 

Of  these  relations  the  first  in  importance,  as  well  as 
in  its  natural  order,  is  that  of  husband  and  wife.  And, 
on  this  subject,  omitting,  as  unnecessary,  all  other  ques- 
tions, I  shall  limit  myself  simply  to  laying  down  a  few 
principles  relative  to  the  nature,  the  ends,  and  the  dura- 
tion of  the  contract  by  which  they  are  united. 


119 

Marriage  is  the  union  of  the  sexes  under  the  sanction 
of  known,  and  public  laws.  Its  ends  are,  to  promote  the 
happiness  of  man,  and  to  provide  for  the  state  a  succes- 
sion of  useful,  virtuous,  and  well-educated  citizens.  These 
ends  would  be  entirely  defeated  by  a  promiscuous  and 
uncertain  commerce,  which  would  have  the  most  baneful 
influence  on  social  order,  and  on  the  public  morals.  That 
the  Creator  intended  the  most  tender  and  intimate  unions 
to  subsist  between  them,  is  evident  from  the  constitution 
of  our  nature,  and  from  the  mutual  sentiments  by  which 
he  has  attached  them  to  one  another.  But  the  dangers 
with  which  he  has  thought  proper  to  guard  the  chastity 
of  the  weaker  sex,  the  helplessness  of  infancy  in  the 
human  species,  and  the  necessity  of  providing,  from  their 
earliest  years,  for  the  virtuous  education  of  children,  re- 
quire that  this  union  should  be  placed  under  the  pro- 
tection, and  control  of  the  laws.  Otherwise,  women  would 
be  exposed  to  the  severest  sufferings,  and  the  most  mor- 
tifying degradation;  men  would  be  at  once  licentious, 
and  unjust;  and  children  would  be,  at  first,  the  most 
wretched,  and  afterwards  the  most  vicious  of  beings. 

Marriage,  according  to  the  precepts  of  religion  and 
the  civil  institutions  of  the  christian  world,  can  take 
place  only  between  one  man,  and  one  woman.  But 
in  consequence  of  the  laws  of  Israel  upon  this  subject, 
and  the  customs  of  patriarchal  antiquity,  it  has  become 


120 

a  question  among  christian  moralists,  whether  polygamy 
be  contrary  to  the  prescription  of  the  law  of  nature,  or 
only  to  the  positive  institutions  of  religion,  and  the  state  ? 
Of  the  law  of  Christ  there  can  hardly  exist  any  doubt. 
The  question,  therefore,  relates  chiefly  to  the  age 
anterior  to  the  christian  dispensation,  and  to  those  nations 
who  do  not  enjoy  the  light  of  the  gospel.  I  confess  I 
cannot  perceive,  from  the  opinions,  and  example  of  the 
wisest  men  of  antiquity,  that  the  law  of  nature  has  pre- 
scribed any  definite  rule  upon  the  subject,  and,  therefore, 
where  religion  has  not  taken  it  out  of  the  hands  of  the 
legislator,  it  is  to  be  regarded  chiefly  as  an  affair  of  civil 
and  political  regulation. — Monogamic  institutions  have 
been  found  wherever  they  have  prevailed,  to  be  followed 
by  a  more  favorable  influence,  than  the  polygamic, 
on  the  improvement  and  happiness  of  society.  And  this 
experience  affords  a  practical  demonstration  of  the 
wisdom  of  the  christian  law  \  but  we  should  be  very 
cautious  in  pronouncing  those,  who  did  not  enjoy  the 
illumination  of  that  law,  to  have  been  guilty  of  any  crime 
in  not  conforming  themselves  to  its  dictates.  Their 
practice  was  rather  an  error  of  the  judgment,  in  mis- 
calculating the  true  interest  of  society,  than  a  vice  of 
the  heart.  On  this  ground  alone  can  I  defend  the 
venerable  patriarchs  of  the  ancient  church,  who  are 
proposed  to  us  in  the   sacred  scriptures  as  the  highest 


121 

examples  of  piety  and  virtue.  In  these  opinions,  likewise, 
I  am  supported  by  the  most  learned  and  pious  writers  of 
the  reformed  church,  and  of  the  primitive  and  apostolic 
age.* 

The  law  of  nature  is  written  on  the  hearts  of  all  men, 
and  it  is  interpreted  by  conscience,  enlightened  by  that 
portion  of  reason  which  we  share  in  common  with  man- 
kind. Its  genuine  principles  are  learned  by  collecting 
those  moral  sentiments  in  which  all  nations  have  con- 
curred. By  this  law  chastity  is  enjoined ;  but  no  precise 
rule  is  prescribed  with  regard  to  marriage.  It  is  left  to 
the  regulation  of  society,  and  the  public  law.f 

*  Vide  St.  Ambrose   speaking  of  the  marriage  of  the  holy 

patriarchs St.   Aug.  contra    Faust,    lib.   2.   c.  47. — Luther, 

Melancthon,  Bucer,  consultation  signed  by  them  and  others,  on 
the  application  of  the  Landgrave  of  Hesse  in  1539. — Dod- 
dridge's lectures  189. — Saurin,  discourse  sur  la  bible.  Tom.  1. 
disc.  19.  p.  296.  Ed.  Amstel.  1720. 

t  Some  writers  have  very  foolishly  objected,  that,  if  this 
were  the  dictate  of  natural  reason,  then  might  the  civil  law 
permit  a  man  to  connect  himself  with  as  many  women  as  a 
vicious  appetite  should  solicit.  As  well  might  any  other  vice, 
or  folly  be  imputed  to  this  source.  It  is  supposing  that  legis- 
lators may  be  destitute  of  all  wisdom  and  virtue.  It  is  suppos- 
ing that  they  have  no  concern  lor  the  interest,  and  happiness 
of  their  wives,  sisters,  or  daughters.    It  is  forgetting  that  each 

wife  must  have  her  family,  and  her  separate  maintenance.   It  is 
vol.  ii.  q 


122 

It  is  objected  to  polygamy  that  it  is  unfavorable  to  the 
energies  of  the  human  mind,  and  the  vigor  and  perfec- 
tion of  the  human  body; — that  it  tends  to  strengthen 
licentious  inclinations  and  habits; — that  it  destroys  the 

imagining  a  consequence  which  never  has  happened,  and  never 
can  happen  in  civilized  society. 

Moses,  in  some  parts,  at  least,  of  his  matrimonial  code,  ap- 
pears to  have  proceeded  on  this  idea,  that  it  is  a  subject  of 
civil  and  political  regulation.  Therefore  we  perceive  several 
injunctions  and  inhibitions  evidently  founded  on  his  peculiar 
political  institutions. — In  one  circumstance,  for  example,  a  man 
is  forbidden  to  marry  the  widow  of  his  deceased  brother.  In 
another  circumstance,  he  is  commanded  to  marry  her,  under 
the  penalty  of  forfeiting  his  legal  right  to  the  landed  estate  of 
his  brother,  which  should  devolve  to  the  next  nearest  male  re- 
lation of  the  family,  who  should  fulfil  the  condition  of  the  en- 
tail. These  apparently  contradictory  regulations  sprung  out  of 
the  agrarian  system  established  by  Moses  in  the  land  of  Israel. 
He  divided  the  whole  territory  into  six  hundred  thousand  por- 
tions, according  to  the  number  of  the  families  which  entered 
into  it  under  the  conduct  of  Joshua.  And  he  ordained  that 
these  portions  should  descend  by  entail,  or  perpetual  succes- 
sion, to  the  legal  heirs  respectively  of  the  original  families,  in 
such  a  manner,  however,  that  no  man  should  be  allowed  to 
hold  two  portions  either  by  devise,  inheritance,  or  marriage. 
If  then  the  deceased  had  left  a  son  to  be  the  heir  of  his  estate, 
the  surviving  brother  who  stood  next  the  inheritance,  was  pro- 
hibited from  marrying  the  widow,  probably,  for  this  reason,  that 
no  unfair  means  might  be  practised  to  remove  the  heir.  But 
if  he  had  died  without  issue,  the  brother  was  commanded  to 
marry  her,  probably,  out  of  a  humane  attention  to  her  happi- 


123 

happiness  of  the  most  tender  and  delicate  sex,  and 
nourishes  among  them  the  most  hateful  passions.  And 
on  these  consequences  is  built  the  ulterior  conclusion? 
that  polygamy  is  contrary  to  the  law  of  nature. 

I  have  no  hesitation  to  admit  as  a  philosopher,  and  a 
christian,  that  the  law  of  one  wife,  as  prescribed  by  our 
blessed  Saviour,  is  most  favorable  to  the  interests  of 
human  nature,  and  of  civil  society.  Eut  it  should  be 
remembered,  that,  if  the  eastern  nations  are,  at  present, 
and  for  a  long  time  have  been,  inferior  in  the  energies 
both  of  body  and  mind  to  the  people  of  Europe,  this 
ought  not  to  be  ascribed  to  any  single  institution,  but  to 
the  combination  of  an  infinite  variety  of  causes  which 
equally  affect  all  nations  in  their  decline.  Once  Asia 
possessed  that  superiority  which  Europe  now  enjoys. 
And  how  long  is  it  since  Saracens  and  Turks  were  an 

ness,  and,  at  the  same  time,  to  preserve  the  lineal  descent  of 
the  inheritance,  otherwise,  he  was  obliged  to  relinquish  his 
title  to  the  next  male  relation  who  should  fuiSl  the  condition. 

These  facts  may  serve  to  settle  the  question  concerning  the 
lawfulness  of  marrying  two  sisters,  which  has  so  long  agitated 
Christendom.  There  can  be  no  natural  immorality  in  marrying 
two  sisters  in  succession,  more  than  two  brothers:  but  Moses, 
who  had  not  prohibited  polygamy,  only  prohibited  the  marrying 
of  two  sisters  at  the  same  time,  lest  the  jealousies  of  love 
should  divide  those  whom  the  affections  of  nature  had  so  close- 


12i 

overmatch  for  the  combined  powers  of  Europe  ?  No  cer- 
tain conclusion  can  be  drawn  on  this  subject  from  such 
examples. 

Equally  uncertain  is  the  next  consequence  imputed  to 
this  patriarchal  institution, — that  it  tends  to  strengthen 
licentious  inclinations  and  habits.  Judging  from  the  in- 
terior of  the  families  of  the  patriarchs,  as  it  is  presented 
to  us  in  the  sacred  history,  nothing  can  be  more  un- 
founded than  this  reproach.  And,  if  we  take  our  estimate 
from  the  general  manners  of  the  east,  according  to  the 
representation  of  the  best  informed  travellers  in  Turkey, 
Persia,  and  Arabia,  the  women  are  distinguished  for 
their  modesty  and  reserve,  and  the  men  for  the  scrupu- 
lous circumspection  of  their  deportment  towards  the 
whole  sex  out  of  the  precincts  of  their  own  families. 
And,  certainly,  there  is  a  wide  difference,  in  the  effect 
produced  on  the  heart,  between  a  vagrant  commerce 
with  mistresses,  and  the  fixed  connexions  and  duties  of 
marriage  formed  under  the  superintendence  of  the  laws, 
in  which  the  union  is  permanent,  the  wife  shares  in  the 
property  and  honors  of  her  husband,  and  both  are  occu- 
pied in  the  modest  and  laborious  cares  of  a  household. 
The  idea  of  a  wife,  and  of  the  grave  and  serious  duties  of 

ly  united.  "  Thou  shalt  not  take  a  wife  to  her  sister,  besides  the 
other  in  her  life-time^  to  vex  her." 


125 

a  family,  quenches  that  lust,*  which  is  only  inflamed  in 
the  company  of  a  mistress,  the  mere  instrument  of 
vulgar,  or  voluptuous  passion. 

But,  omitting  every  other  proof,  the  principle  of  the 
natural  unlawfulness  of  the  polygamic  institution,  derives 
a  more  plausible  support  from  the  equality  which  is 
always  found  to  subsist  between  the  numbers  of  the  re- 
spective sexes,  the  males  having  been  found,  by  the  most 
accurate  enumerations,  to  be  nearly  in  the  proportion  of 
thirteen  to  twelve,  to  the  females,  or  more  exactly,  per- 
haps, of  twenty  to  nineteen.  The  design  of  the  Author  of 
nature,  it  is  supposed,  is  evidently  indicated  by  tliis  ratio 
of  the  sexes,  the  small  surplus  on  the  side  of  the  males 
being  allowed  for  the  greater  wastes  occasioned  by  their 
more  hazardous  occupations.  But  polygamy,  in  effect, 
destroys  this  ratio  in  the  marriageable  part  of  the  species. 
— This  is  the  argument ;  and  it  is,  certainly,  not  without 
the  appearance  of  great  force.  It  may  be  replied,  how- 
ever, that  it  is  ov1  '  within  a  recent  period  that  the  fact 
of  this  equality  has  been  discovered  by  the  accuracy  of 
modern  science — It  could  not,  therefore,  even  to  the 

*  From  this  remark,  perhaps,  might  be  excepted  the  un- 
limited seraglios  of  their  satraps  and  princes.  Yet  the  volup- 
tuousness of  these  supposed  seats  of  sensuality  cannot  surpass 
that  of  the  greater  part  of  the  courts  of  Europe. 


126 

wisest  men  in  the  patriarchal  age,  have  formed  the  basis 
of  any  known  law  of  nature.* 

From  these  illustrations  it  results,  that  the  practice  of 
polygamy,  in  that  age,  eould  not  be  charged  to  those 
venerable  men  as  a  crime  against  good  morals.  And  its 
immorality  since  the  coming  of  Christ,  the  great  moral 
legislator  of  the  universe,  rests  chiefly  upon  his  positive 
institution,  supported  by  the  law  of  the  land.  Before 
that  period,  marriage  Avas  regarded  among  all  nations  as 
a  subject  intirely  of  civil  and  political  regulation.  Nor 
let  it  be  imagined  that  female  honor  and  safety  were,  in 
that   case,  under   an  insecure   protection ;  or   that   the 

*  A  better  reason  in  favor  of  this  patriarchal  institution, 
might,  in  my  opinion,  be  adduced  from  the  following  consider- 
ations; that  the  distinctions  of  poverty  and  wealth  which  ne- 
cessarily grow  up  in  society  in  a  course  of  time,  destroy,  in 
effect,  that  equality  between  the  numbers  of  the  sexes,  as  far 
as  regards  the  right  of  marrying,  on  which  the  argument  in  the 
text  is  founded.  Many  men  in  society  must  always  be  too  poor 
to  allow  them  prudently  to  marry.  Many  must  evidently  be 
criminal  in  marrying,  with  the  certain  prospect  before  them  of 
introducing  an  offspring  into  the  world  only  to  want,  misery, 
and  vice.  So  that  what  nature  had  originally  made  equal' 
moral  causes,  which  are  no  less  certain  in  their  operation,  have 
again  rendered  unequal.  Hence,  among  the  pious  patriarchal 
princes,  the  law  of  marriage,  and  the  right  to  a  plurality  of 
wives,  might  be  regarded  by  natural  reason,  as  being  relative 
to  rank,  and  fortune;  that  is,  to  the  ability  of  maintaining  so 
many  families,  rather  than,  strictly,  to  the  ratio  of  the  numbers 
of  the  respective  sexes. 


127 

public  sense  of  crimes  against  chastity  was  weak. 
Moses  punished  that  class  of  crimes  with  death.  And 
fathers,  husbands,  brothers,  that  is,  the  entire  nation, 
will  always  be  deeply  interested  in  the  honor  of  their 
wives,  their  daughters,  and  their  sisters,  and  be  disposed 
to  guard  it  by  the  most  energetic  laws.  Do  we  see,  in 
effect,  that  the  rights  of  property  are  less  secure,  or 
esteemed  less  sacred,  because  they  are  established  ex- 
clusively by  the  civil  authority  of  the  state,  and  take 
their  various  modifications  from  the  political  views  of  the 
legislator  ?  Is  not  the  man  who  violates  them  esteemed  a 
thief,  a  robber,  fraudulent,  unjust,  and  an  object  not  less 
of  public  indignation,  than  of  public  punishment  ?  And 
are  the  rights  of  chastity  less  sacred  in  the  eyes  of  legis- 
lators, or  less  capable  of  effectual  protection  ?  The  law 
of  Christ,  indeed,  aims  at  a  sublimer  degree  of  per- 
fection than  the  patriarchal  or  Mosaic  institutions.  And 
the  high  authority  by  which  it  is  enjoined  should  impose 
it  as  an  inviolable  rule  of  action  on  all  his  disciples ;  and 
the  experience  of  its  beneficial  influence  among  christian 
nations  is  sufficient  powerfully  to  recommend  it  to  all 
wise  and  virtuous  legislators. 

OF   THE  DURATION  OF   MARRIAGE,  AXD  OF  DIVORCE. 

The  next  important  question  on  this  subject  relates  to 
the  duration  of  the  marriage  contract.   Although  some 


128 

nations  in  the  East  have  admitted  of  temporary  mar- 
riages, and  the  experiment  was  again  tried  during  the 
madness  of  the  late  revolution  in  France,  yet  the  evident 
interests  of  society,  and  humanity,  require  that  the  union 
of  husband  and  wife  should  be  permanent  during  the 
common  life  of  both.  This  regulation  has  been  found  to 
impose  the  most  effectual  restraint  on  licentious  passions, 
it  is  the  best  security  for  domestic  peace,  and  for  the 
public  order  of  society,  and  affords  the  most  powerful 
motives,  and  the  most  favorable  opportunities,  for  the 
virtuous  education  of  children,  in  which  the  undivided 
efforts  of  both  parents  ought  to  concur. 

The  laws  of  marriage  ought  to  be  especially  calculated 
to  protect  the  weakness  of  the  female  sex,  and  to  save 
from  outrage  the  delicacy  of  their  attachments.  To  this 
end  no  principle,  perhaps,  is  better  adapted  than  the 
perpetuity  of  the  marriage  contract. 

But,  under  this  head,  the  principal  enquiry  that  has 
occupied  civilians  and  moralists  is,  whether  any  causes 
exist  which  may,  in  consistency  with  virtue  and  good 
morals,  dissolve  this  contract,  and  divorce  the  parties 
from  each  other,  after  it  has  been  legally  formed  ? 

Some  civilians  have  unreasonably  multiplied  the  causes 
of  divorce;  and  others,  perhaps  with  as  little  reason, 
restricted  them  to  the  single  one  ofunchastity,  or  infidel- 


129 

ity  to  the  vows  of  marriage.   This  restriction  they  pro- 
fess to  derive  from  a  humane  and  benevolent  decision  of 
our  Saviour  on  a  captious  question  proposed  to  him  on 
this  subject,  forbidding  a  man  to  put  away  his  tvife,  ex- 
cept for  this  reason  alone.    But  they  do  not  sufficiently 
reflect  that,  in  this  decision,  the  great  legislator  of  the 
church  is  not  prescribing  an  universal  law  of  divorce, 
but  merely  correcting  an  abuse,  which  had  grown  up  by 
time,  in  the  exercise  of  a  power  which   the  laws,   or 
customs,  of  the  country  had  given  to  Jewish  husbands. 
They  had  acquired,  or  usurped,  the  iniquitous  preroga- 
tive of  dismissing  their  wives   from  their  families   and 
protection,  solely  on  their  own  authority,  for  the  most 
|  trivial  dislikes,  or  differences  of  opinion.    This  excessive 
and    unjustifiable  exercise  of  an   undefined   power,   he 
j  meant,  with  that  benevolence  which  characterise-  all  his 
j  laws,  to  restrain.   It  is  necessary  in  interpreting  this  law, 
\  to  distinguish  between  the  right  of  repudiation  claimed 
by  a  Jewish  husband,  depending,  as  it  did,  merely  on  his 
own  authority  and  caprice,  which  is  here  so  justly  re- 
strained by  Christ,   and  the  right  of  divorce,  depending 
on  the  impartial  sentence  of  the  law,  which  is  exercised 
;  only  through  the  agency,  and  by  the  authority  of  the 
!  public  magistrate.   To  the  former  the  rule  of  Christ, 
which  is  merely  a  moral  prescription  to  regulate  the 

I conduct  of  individuals  in  an  important  case,  applies  with 
vol.  ii.  K 


130 

the  greatest  humanity.  The  latter  is  an  object  of  civil 
jurisprudence,  and  is  to  be  governed  by  the  constitution 
of  the  judicial  department,  and  the  principles  of  the 
national  system  of  the  administration  of  justice;  and  it 
does  not  appear  that  out  Saviour  designs,  in  this  sentence, 
to  prescribe  any  rule  to  legislators,  and  the  organs  of 
the  civil  law;  to  whom  alone  belongs  the  legal  right  of 
exercising  the  power  of  divorce.  We  are  at  liberty, 
then,  to  examine  all  the  causes  which  have  at  any  time 
been  urged  by  moral  writers  as  sufficient  to  dissolve  a 
union  which  virtue,  and  a  just  consideration  of  the  publie 
good,  always  intends  in  its  formation  to  be  perpetual. 

But,  in  this  enquiry,  it  should  be  laid  down  as  a  sound 
moral  and  political  principle,  that  divorces  ought  never 
to  be  permitted  but  in  cases  of  evident  and  great  necessi- 
ty. Few  things  contribute  more  to  promote  domestic 
harmony,  and  to  secure  justice  and  kindness  to  the  im- 
becility of  the  sex,  than  the  obstacles  which  the  law 
opposes  to  a  dissolution  of  the  conjugal  union.  In  all 
causes  of  difference  that  may  arise  between  a  husband 
and  a  wife,  when  this  is  known,  they  must  find  a  strong 
and  mutual  interest  in  concession  and  moderation.  But 
if  this  high  and  sacred  union  were  capable  of  being  dis- 
solved on  slight  occasions,  those  occasions  would  never 
be  wanting  to  the  vicious.  The  smallest  umbrages  would 
often  be  magnified  into  causes  of  the  most  cruel  injustice- 


131 

The  condition  of  perpetuity,  besides  its  beneficial  in- 
fluence on  the  public  morals,  is  a  guard  which  reason 
and  humanity  demand  for  the  security  of  the  weaker  sex. 
If  the  contract  were  transient,  and  uncertain,  they  would 
commit  their  happiness  in  the  most  essential  points  too 
often  to  the  capricious  will  of  men  fickle  in  their  attach- 
ments, and  rendered  cruel  by  some  new  passiou. 

In  one  point  the  laws  of  all  nations  have  concurred ; 
that  infidelity  to  the  vows  of  marriage  by  the  dereliction 
of  chastity,  is  a  sufficient  ground  of  dissolving  the  matri- 
monial union.  This  is  admitted  on  a  universal  principle 
of  law  and  reason; — that  fraud  or  failure  in  fulfilling 
the  condition  of  a  contract  exonerates  the  innocent  and 
deceived  party  from  its  obligations.  In  marriage,  there- 
fore, when  the  rights  of  one  of  the  parties  are  alienated 
and  transferred  to  the  possession  of  another,  the  contract 
is  violated  in  its  most  essential  article.  And  the  law  may 
justly  grant  a  divorce  to  the  injured  party  suing  for  it  j 
yet  on  such  terms,  and  this  would  be  an  additional 
security  to  morals,  that  the  party  offending  should  never 
enjoy  the  privilege  of  marrying  again.  But  although 
infidelity  be  a  reasonable  cause  of  divorce,  the  offender 
ought  never  to  be  allowed  to  plead  his  own  fault  in  order 
to  obtain  a  dispensation  from  the  bond  of  matrimony. 
Faults  ought  to  be  punished,  not  rewarded.  And,  how- 
ever painful  the  idea  of  infidelity  in  a  husband,  or  a  wife, 


132 

may  be  to  the  jealousy  of  honor,  or  of  love,  yet  there 
are  situations  in  which  it  is  preferable  to  suffer  the 
severest  pains  of  the  heart  in  silence,  especially  for  a 
wife,  than  to  submit  to  the  consequences  of  a  forced 
separation. 

Obstinate  and  continued  desertion  may,  for  a  similar 
reason,  be  esteemed  a  justifiable  ground  of  divorce,  when 
it  can  be  proved  to  have  taken  place  without  just  cause. 
Such  causeless  and  voluntary  desertion  defeats  the  end 
of  the  matrimonial  contract,  and  is,  as  in  the  former 
ease,  a  fraudulent  violation,  or  abandonment  of  its  con- 
ditions. As  in  that  case,  likewise,  it  would  be  contrary 
to  good  morals  to  yield  to  the  offending  party  the  right 
of  contracting  a  new  marriage. 

To  these  causes  I  scruple  not  to  add  habitual  intoxi- 
cation, as  defeating  the  principal  ends  of  marriage ;  the 
happiness  of  the  parties,  and  the  proper  care  and  educa- 
tion of  their  offspring.  It  it  be  the  wife  who  is  addicted 
to  this  viee,  there  can  be  no  security  for  her  fidelity;  if 
it  be  the  husband,  his  wife  can  have  no  defence  against 
the  grossness,  or  inhumanity  of  his  treatment.  She  be- 
lieved that  she  married  a  man,  but  she  finds  herself 
united  only  to  a  brute. 

Cruel  and  barbarous  treatment,  on  the  part  of  the 
husband,  is  admitted  by  the  common  law,  to  be  a  reason- 


133 

able  ground  of  the  separation  of  a  wife  from  his  bed  and 
board.  It  is,  in  my  opinion,  an  adequate  cause  of  divorce, 
where  it  can  be  sufficiently  ascertained  to  the  judgment 
of  twelve  competent  and  impartial  men.  Inhumanity  in 
the  husband,  not  less  than  infidelity  in  the  wife,  is  a 
violation  of  all  the  ends  and  conditions  of  the  marriage 
contract.  If  this  be  denied,  because  there  is  no  uncer- 
tainty in  the  offspring  in  the  one  case,  as  there  is  in  the 
other;  I  answer,  that  it  is  a  vile  and  base  idea  of  mar- 
riage to  suppose  that  it  is  merely  making  a  woman  the 
vulgar  instrument  of  giving  an  heir  to  an  estate. 

Other  causes  have  been  assigned  by  different  writers, 
but,  apparently,  with  less  reason,  as  affording  sufficient 
grounds  of  divorce.  Among  these  has  been  given  great 
contrariety  of  temper,  which  mars  the  mutual  happiness 
of  the  parties.  This  cause  is  infinitely  too  vague  to  be 
designated  in  any  law  with  that  precision  which  is 
requisite  to  the  due  administration  of  justice.  But,  be- 
sides this  inconvenience,  the  most  ill-disposed  would 
always  have  too  much  in  their  power.  Of  the  general 
principle  a  dreadful  abuse  was  made,  at  one  period, 
during  the  late  revolution  in  France. 

Certain  diseases,  supposed  to  be  incurable,  have  also 
been  enumerated,  among  the  adequate  causes  of  divorce. 
But,  not  to  mention  the  difficulty,  not  to  say  impossi- 


134 

bility  of  ascertaining  what  diseases,  or  whether  any,  are 
absolutely  incurable,  a  peculiar  cruelty  seems  to  be 
involved  in  the  principle.  After  the  fortunes,  and  happi- 
ness of  two  persons  have  become  so  intimately  united 
together  as  they  are  by  marriage,  is  it  not  most  unrea- 
sonable and  inhuman,  that  because  it  has  pleased  divine 
providence  to  afflict  one  with  severe  disease,  the  other 
should  possess  the  power,  not  only  to  add  to  the  calami- 
ty, but  to  take  away  from  the  miserable  sufferer,  Mho 
ought  to  be  so  tenderly  cherished,  and  protected,  the  last 
ray  of  consolation  and  hope  ? 

The  last  of  these  imperfect  and  inadequate  causes  of 
divorce  which  I  shall  mention,  is  mutual  consent. — To 
the  willing,  it  is  said,  no  injury  is  done. — Consent,  I 
answer,  may  be  a  sufficient  ground  of  separation ;  not  of 
divorce.  Divorce  implies  the  right  of  marrying  again 
in  the  party  in  whose  favor  it  is  made.  This  would  often 
prove  too  great  a  temptation  to  the  strongest,  or  most 
malignant  to  harrass  the  other  into  consent  by  intolera- 
ble vexations.  This  was  also  tried  in  France  during  that 
period  of  confusions,  and  was  found  to  make  confusion 
only  more  confounded. 

Individual  cases  of  hardship  must  undoubtedly  arise 
from  a  rigid  adherence  to  the  principles  above  laid  down. 
But  no  tribunal  can  be  constituted  in  human  society 


135 

which  can  be  safely  vested  with  the  power  of  suspending 
the  rule,  or  of  judging,  in  all  cases,  of  its  equitable  ex- 
ceptions. Society,  like  the  universe,  must  be  governed 
by  general  laws. 

Thus  have  I  treated  of  the  relation  of  marriage  both 
before,  and  since  the  christian  sera,  as  far  as  respects 
the  equity  of  the  polygamic,  or  the  inonogamic  institu- 
tions, chiefly  with  the  view  of  rescuing  from  licentious 
reproach  the  ancient  worthies  of  the  church,  and  fathers 
of  our  religion.  I  have  endeavored,  in  the  next  place, 
briefly  to  state  the  causes  which  may,  at  any  time,  be 
safely  and  reasonably  pleaded  to  justify  the  dissolution  of 
a  connexion  so  sacred,  which  has  once  been  rightfully 
formed. 

OF  THE  CRIME  OF  AN  ILLEGAL  COMMERCE  OF  THE  SEXES. 

Having  spoken  of  the  marriage  contract  formed  under 
the  sanctions  of  the  civil  law,  and  considered  it,  as  limited 
by  the  christian  law,  to  take  place  between  one  person 
only  of  each  sex,  I  shall  now  proceed  to  point  out  the 
crime  of  any  clandestine  and  illegal  unions  which  form 
the  principal  offence  against  this  most  important  of  the 
domestic  relations — In  proportion  as  loose  and  vagrant 
eonnexions  between  the  sexes,  exist,  and  are  justified,  or 
connived  at  by  public  opinion,  or  are  pursued  by  private 
vice,  marriage  is  regarded  as  inconvenient  and  falls  into 


136 

disuse,*  men  become  profligate  and  enervated  ;  women 
are  rendered  unhappy  and  contemptible  in  proportion  as 
they  are  dishonored ;  and  children,  growing  up  without 
proper  example  and  education,  become  ignorant  and 
vicious;  and,  from  all  these  causes,  the  public  morals 
and  the  interests  of  the  state  suffer  deep  and  irretrievable 
injury.  There  is  no  vice  which  men  appear  to  be  so 
willing  to  excuse  to  themselves ;  yet,  none  in  the  whole 
catalogue  of  crimes,  is  productive  of  greater  evils  to 
society.  The  licentious,  because  they  do  not  immediately 
suffer  from  the  consequences  of  their  seductions,  are 
found  to  become  unfeeling,  cruel,  and  treacherous.  Re- 
morselessly they  leave  the  victims  of  their  pleasure  to  the 
most  exquisite  sufferings,  to  infamy,  and  ruin.  If  these 
unfortunate  women  ever  return  to  a  sense  of  virtue,  they 
are  overwhelmed  with  anguish  and  shame :  but  if,  as  is 
too  likely  to  be  the  case,  a  vicious  appetite,  or  despair 
from  the  loss  of  character,  tempt  them  to  a  life  of  pros- 
titution, a  fatal  gulph  is  prepared  for  the  public  morals. 
But  who  can  estimate  the  cruel  injuries  done  to  an  un- 
acknowledged and  abandoned  offspring,  whom  the  guilty 
father  had  no  right,  for  his  own  pleasure,  to  bring  into 
existence,  in  order  barbarously  to  give  them  up  to  want, 
disgrace,  and  vice  !  If  violations  of  property  are  punished 
with  imprisonment  and  death,  what  pains  can  be  too 
severe  for  violations  of  chastity  which  draw  after  them  a 


137 

train  of  so  much  more  aggravated  evils  !  It  diminishes 
the  guilt  but  little,  that  they  are,  most  commonly,  com- 
mitted with  the  consent  of  the  unhappy  sufferer:  it  is  the 
difference  only  between  swindling  and  robbery. 

Women,  whose  frailty  deserves  compassion,  have 
usually  been  the  sole,  or  the  principal  sufferers  from  this 
crime,  by  the  natural  dangers  which  grow  out  of  the 
female  constitution,  by  the  severity  of  public  opinion, 
and  their  own  terrible  sensations  when  left  alone  to  all 
the  consequences  of  their  lost  virtue.  If  the  law  would 
ever  impose  an  effectual  restraint  upon  an  evil  so  per- 
nicious to  society,  it  must  subject  the  aggressor  sex,  who 
are  chiefly  culpable,  to  some  pains  equivalent  to  those  of 
which  they  become  the  occasions  to  their  seduced  and 
unhappy  companions. 

Men  who  would  reprobate  in  the  strongest  manner  the 
arts  of  seduction  employed  on  tender  and  inexperienced 
females  in  the  wealthier  and  more  polished  circles  of 
life,  too  often  feel  little  compunction  at  corrupting  the 
virtue,  and  destroying  the  happiness  of  women  in  the  in- 
ferior classes  of  society.  The  pride  of  rank  and  fortune 
disqualifies  them  from  sympathising  with  the  feelings  of 
those  who  are  far  beneath  them,  as  if  their  sensibilities 
were  less  exquisite,  and  the  loss  of  character  were  to  them 

a  less  evil,  than  to  females  of  better  condition.   Their  in- 
vol.  ii.  s 


138 

feriority,  indeed,  renders  them  more  liable  to  the  unprin- 
cipled attempts  of  seduction  ;  but  the  loss  of  virtue  and  of 
character  is  not  less  a  source  of  extreme  wretchedness, 
and  often  becomes  the  direful  impulsion  to  abandoned 
prostitution,  and,  at  length,  to  the  perpetration  of  th© 
deepest  crimes.  When  women,  in  order  to  guard  one 
virtue,  the  most  difficult  and  important  to  be  preserved, 
have  collected  the  whole  of  female  honor  into  a  single 
point,  that  it  may  be  the  more  strenuously  defended,  if 
they  have  been  seduced  to  deliver  up  this  fortress  of  their 
fame  and  character,  they  commonly  abandon  with  it  all 
their  other  virtues.  And  the  seducer,  who,  by  vows  and 
protestations,  has  betrayed  too  credulous  innocence,  is 
chargeable,  in  the  sight  of  Heaven,  with  all  the  anguish, 
and  the  guilt  which  follows.  What  then  must  be  the"  de- 
gree of  that  anguish  which  follows  the  fruit  of  unlawful 
love,  when  woman,  whose  maternal  feelings  are  so  ex- 
quisite, who  would  survey  with  such  pride  the  infant 
which  sbe  could  honorably  own,  who  would  bend  over  it 
with  such  extacy,  who  would  rush  into  the  midst  of 
flames  to  rescue  it  from  danger,  but,  unlawfully  become  a 
mother,  is  often  tempted  to  stille  all  the  feelings  of  na- 
ture, and,  in  a  moment  of  distraction,  to  remove  it  forever 
from  her  sight,  or  herself  to  become  its  murderer,  to  hide 
her  own  disgrace  ! — If  the  deep  aHIiction  of  a  deluded  suf- 
ferer, if  the  loss  of  so  many  pleasures,  and  so  many  hopes, 


139 

as  accompany  the  innocence  of  a  virtuous  woman,  if  the 
vices,  the  shame  and  misery  which  follow  the  dereliction 
of  virtue  in  the  sex,  can  aggravate  guilt,  how  aggravated 
must  be  the  guilt  of  her  seducer !  And  how  base  must  be 
the  heart  of  that  man  who,  for  a  moment  of  thoughtless 
pleasure,  will  hazard  the  bringing  of  such  evils  upon  one 
whom  love  should  cherish,  whom  honor  and  generosity 
should  protect  ! 

There  are  men  whose  honor  would  shrink  from  the 
enormity  of  bringing  disgrace  and  ruin  on  the  innocence, 
and  the  confiding  simplicity  of  a  young  woman  in  a 
decent  station  of  life,  who  are  little  scrupulous  at  se- 
ducing married  chastity.  They  encourage  themselves  by 
the  idea  that  this  crime  is  more  secure  from  the  dis- 
grace of  detection,  and  the  foul  dishonors  which  blast 
the  fruits  of  unlawful  love  in  an  unmarried  state. — Yes, 
but  it  is  never  perfectly  secure.  And  is  it  not  then 
greatly  aggravated  by  the  dishonor  and  affliction  of  a 
whole  family,  and  by  the  anguish  of  a  husband  robbed, 
at  once,  of  his  honor,  and  his  principal  treasure  ?  No  re- 
ward can  purchase  back  the  peace  of  mind  of  an  injured 
husband,  and  father  of  a  family.  Death  would  often  be  a 
preferable  evil. — But,  admitting  that  the  crime  could  be 
preserved  a  perfect  secret,  is  it,  in  any  degree,  less  a 
crime  on  that  account  ? — The  criminality  of  an  action  is 
not  to  be  estimated  by  the  consequences  which  may  hap- 


140 

pea  to  an  individual  in  a  particular  case,  but  by  those 
■which  would  flow  from  admitting  the  principle  of  such 
actions  as  a  rule  of  general  conduct.  For  no  individual 
has  a  right  to  have  peculiar  rules  of  duty,  or  peculiar  ex- 
emptions from  general  rules  established  in  favor  of  his 
passions.  What  then  would  he  the  effect  of  this  moral 
principle,  that  secrecy,  while  it  protected,  also  justified 
an  adulterous  commerce  ?  To  what  jealousies,  suspicions, 
distrusts,  infelicities,  would  it  not  give  rise  ?  No  ties  of 
duty,  then,  would  prevent  the  rising  of  a  new  passion  in 
the  breast  of  a  married  woman.  All  domestic  confidence, 
all  the  harmony  of  society,  would  be  destroyed. 

The  seduction  of  virgin  or  of  married  chastity,  con- 
sidered in  the  lights  in  which  they  have  been  placed,  will 
generally  be  condemned  by  the  reason  of  all  men  ;  there 
are  not  a  few,  however,  who  justify,  or  excuse  illegal  con- 
nexions with  those  who  have  already  lost  their  virtue,  or 
are  prepared  to  make  a  mercenary  sale  of  it.  Although 
this  may  appear,  to  careless  observers,  to  be  less  culpable 
than  the  cases  which  have  been  just  mentioned,  it  is, 
nevertheless,  a  crime  highly  pernicious  to  the  public  in- 
terest, and  destructive  of  the  moral  habits  of  the  people. 
And  a  great  portion  of  the  species  it  necessarily  renders 
most  worthless  and  most  miserable.  Society  is  deeply  in- 
jured by  a  practice  which  effeminates  and  debauches  the 
manners  of  its  citizens,  and,  especially,  which  discourages 


14i 

marriage,  and  prevents  the  forming  of  regular  and  or- 
derly families,  which  are  the  strength  of  a  slate,  and  the 
principal  source  of  its  prosperity.  And  certainly  no  vice 
more  entirely  depraves  the  mind  than  this  low  commerce 
of  gross  sensuality.  It  hlunts  the  fine  and  delicate  percep- 
tions of  the  moral  sense  ;  and  perhaps  the  greatest  crimes 
which  ever  disgraced  human  nature  have  taken  birth 
amidst  the  scenes  of  loose  and  profligate  pleasure. 

Having  pointed  out  the  criminality  of  any  union  of  the 
sexes  not  authorized  by  the  laws,  under  whatever  form  it 
may  take  place,  I  conclude  with  a  brief  answer  to  this 
important  moral  enquiry  ;  how  far  does  reason,  and  a  just 
regard  to  chastity  require  that  men  should  impose  a  re- 
straint upon  their  conduct,  and  their  passions  ?  The  rule 
of  the  gospel  is  most  conformable  to  the  dictates  ofa  sound 
reason,  that  the  guards  of  virtue  ought  to  be  placed  upon 
the  heart  and  the  thoughts.  It  is  of  the  utmost  importance 
to  preserve  the  imagination  and  the  fancy  chaste ;  it  is 
otherwise  in  vain  to  hope  to  subject  the  manners,  to  the 
laws  of  modest}'  and  virtue — a  loose  wit,  indelicate  con- 
versation, lascivious  pictures,  odes,  scenes  which  tend  to 
inflame  the  passions,  the  visions  ofa  sensual  fancy  indulged, 
are  culpable  in  the  next  degree  to  actual  prostitution. 
The  law  of  God  requires  that  our  thoughts  shall  not  sin  ; 
and  the  law  of  reason  confirms  its  dictate. 


142 


LECTURE  XX. 

©F  THE  DUTIES  OF  PARENTS  AND  CHILDREN. 
CONTENTS. 

Peculiar  duties  of  parents,  present  maintenance — educa- 
tion— provision  for  future  life. — Present  maintenance 
of  small  importance  unless  a  child  be  educated  in  such 
arts  as  will  enable  him  to  maintain  himself,  and  render 
him  in  a  great  measure  independent  of  the  untoivard 
accidents  of  life. —  Education  should  respect  chiefly  the 
forming  of  good  moral  and  religious  principles. — Ob- 
jections to  this  branch  of  education — the  objections  an- 
swered.— Of  the  rights  of  parents — of  the  duties  of 
children — their  virtues  connected  with  the  national  vir- 
tue, and  prosperity. — Interpretation  of  the  fifth  com- 
mand of  the  decalogue  of  Moses. 

FROM  marriage  arise  the  next  important  relations 
of  parents  and  children.  Of  these  it  will  be  necessary  to 
take  only  a  very  brief  review.  The  instructions  of  reli- 
gion, the  laws  of  our  country,  and  the  public  sentiment, 
have  left  little  to  be  learned  on  these  heads ;  and  they 
have  been  embarrassed  by  few  controversies. 


143 
OF   THE    PECULIAR    DUTIES    OE   PARENTS. 

As  parents  have  become  the  occasion  of  giving  an  in- 
voluntary existence  to  their  offspring,  they  are  charged 
by  nature  and  religion  with  the  care  of  their  happiness. 
Their  general  duties,  therefore,  having  always  in  view 
this  ultimate  end,  may  be  comprised  under  the  heads  of 
present  maintenance,  education,  and  provision  for  the  fu- 
ture comfort  of  life. 

By  maintenance  is  intended  subsistence  while  they  are 
young,  and  incapable  of  devising  and  using  the  necessary 
means  for  their  own  support.  Nature  indicates  this  duty 
by  furnishing,  in  the  breast  of  the  mother,  a  rich  and  de- 
licious nourishment  for  her  infant.  She  further  indicates 
it  to  both  parents  by  that  strong  instinctive  propensity 
which  she  has  implanted  in  their  hearts  to  cherish,  pro- 
tect, and  assist  their  offspring  during  the  imbecility  of 
infancy.  Prompted  to  this  duty  by  the  most  powerful  im- 
pulses of  nature,  there  can,  certainly,  be  little  merit  in 
fulfilling  it ;  but,  there  is,  on  that  very  account,  propor- 
tionably  greater  ignominy  and  guilt  attached  to  its  ne- 
glect. Accordingly,  there  are  few  vices  against  which 
deeper  detestation  is  expressed  by  all  men.  A  mother 
who  abandons  her  infant  in  order  to  pursue  her  own 
pleasure,  or  through  defect  of  natural  feeling  ;  a  father 
who,  through  indolence,  or  vice,  leaves  his  child  to  want, 


or  suffering,  which  he  might  he  able,  by  virtuous  exertion, 
to  remove,  is  justly  esteemed  Avorse  than  a  barbarian. 

But  a  parent  fulfils  only  a  small  part  of  his  duty  who, 
contented  with  sustaining  his  children  during  their  feeble 
and  infantile  state  in  his  own  family,  neglects  that  useful 
and  efficient  education  which  will  enable  them  to  make 
provision  for  their  own  subsistence  and  comfort  in  future 
life,  and  to  transmit  the  same  powers  to  the  generation 
which  may  succeed  them.    Whatever  fortune  a  parent, 
at  his  death,  may  leave  to   his   children,  he  has  not  ac- 
quitted himself  of  the  sacred  obligation  contracted  at  their 
birth,  unless  he  has,  in  a  government  like  ours,  in  which 
there  is  no  hereditary  nobility,  and  no  entailed  wealth, 
endeavored  to  render  them,  by  an  education   correspond- 
ent to  their  condition  in  society,  independent  on  fortune. 
Often  have  Ave  occasion  to  behold  great  and  afflicting  re- 
verses in  the  external  circumstances  of  opulent  families, 
and  miserable  are  they  Avho   have   not  been  taught  with 
virtuous  equanimity  to  bear  them,  or  who  have  no  re- 
sources in  their  own  faculties,  bodily,  or  mental,  to  apply 
them  to  other  means  of  subsistence.    The  mere  instinctive 
affection  which  leads  a  parent  to  maintain  his   child  in 
idleness,  and  pleasure,  or  to  supply  his  pecuniary  Avants, 
far  from  being  a  virtue,  too  frequently  degenerates  into 
vice,  and  becomes  a  foolish  fondness  that  disappoints  its 
own  aim,  and  when  it  would  raise  them  to  honor,  only 


1*5 

sinks  them  into  insignificance  and  contempt.  The  paren- 
tal affections,  in  order  to  he  virtuous,  ought  to  he  regu- 
lated by  a  firm  inflexible  sense  of  moral  obligation.  It  is 
then  only  that  they  become  noble  and  dignified  principles 
of  action,  and  instead  of  consulting  the  momentary  grati- 
fications of  children,  through  a  fond  imbecility  of  mind, 
pursue  only  their  more  enlarged  and  durable  interests, 
to  which  just  and  prudent  restraints  become  often  the 
most  useful,  though  sometimes  the  most  painful,  offices  of 
a  wise  education. 

Education,  even  as  it  respects  the  humblest  orders  of 
society,  embraces  a  field  of  great  importance  and  extent. 
Kature  has  given  to  man  the  powers  of  action,  it  is  edu- 
cation which  directs  their  operation  : — the  soil  is  pre- 
pared by  nature,  but  the  harvest  it  shall  produce  depends 
upon  its  culture.  It  is  education  chiefly  which  makes 
man  what  he  is ;  whether  it  be  well,  or  ill  conducted.  la 
the  idea  of  education  I  include  not  only  what  is  conveyed 
into  the  mind  by  direct  and  positive  instruction,  but 
every  impression  which  is  received  directly,  or  inciden- 
tally, by  precept,  example,  or  intercourse  with  mankind, 
which  contributes  to  form  the  character.  This  opens  a 
wide  scope  to  the  attention,  circumspection,  and  care  of  a 
virtuous  parent.    One  of  the  first  of  parental  duties  is  to 

have  children  initiated  in  some  useful  arts,  and  trained 
vox.  ii.  t 


146 

to  such  Wbits  of  prudent  industry,  as  are  requisite  for 
procuring  a  sure  subsistence  through  life,  without  the 
hazard  of  falling,  at  length,  as  a  burden  on  society,  or  the 
temptation  of  becoming  injurious  to  it.  And  in  the  mid- 
dling and  superior  classes  it  is  perhaps  still  more  neces- 
sary to  awaken  a  generous  ambition  of  becoming  useful, 
or  of  rising  to  distinction  in  it  by  their  virtues  and  their 
talents. 

But  that  at  which  domestic  education  ought  principally 
to  aim,  and  which  is  greatly  aided  by  the  preceding  at- 
tentions, is  the  moral  and  religious  cultivation  of  the 
heart  and  manners.  To  the  attainment  of  this  primary 
object  of  parental  care,  it  is  of  high  importance  that  the 
mind  should  be  early  imbued  with  the  principles  of  piety 
and  virtue  ;  and  that,  by  a  prudent,  steady,  and  dignified 
discipline,  the  manners  should  be  formed  to  a  serious  res- 
pect for  the  institutions  of  religion,  to  the  exercise  of  the 
liumane  and  benevolent  virtues,  and  to  a  noble  self-com- 
mand imposed  on  all  the  proud,  selfish,  and  licentious  pas- 
sions. By  education,  skilfully  applied,  the  manners,  habits, 
and  sentiments  of  youth  may  be  formed  to  almost  any 
standard.  But  if  we  do  not,  in  the  earliest  periods  of  life, 
take  possession  of  the  mind  by  good  principles,  maxims 
favorable  to  vicious  indulgence  will,  almost  necessarily, 
take  birth  amidst  the  inconsideration  and  the  passions  of 
youth.   And  if  a  vigilant   and  prudent  discipline  be  ne- 


1*7 

glected,  tliere  is  infinite  hazard  of  its  being  led  astray  by 
the  companions  which  inexperience,  and  the  thoughtless 
impulses  of  pleasure,  naturally  incline  them  to  select. 

But  the  best  precepts  will  lose  their  effect  unless  they 
are  accompanied  by  a  virtuous  and  pious  example.  The 
principle  of  imitation  is  a  much  more  powerful  instru- 
ment of  morals  in  youth  than  merely  depositing  in  the 
memory  the  general  maxims  of  duty.  A  serious  respect 
to  the  institutions  of  religion,  a  pure  and  chaste  conversa- 
tion, the  example  of  strict  integrity,  of  warm  and  active 
benevolence,  of  prudent  and  circumspect  manners,  espe- 
cially in  the  presence  of  youth,  as  they  are  duties  of  all 
times,  and  of  all  persons,  are  peculiarly  incumbent  on 
parents  in  the  education  of  their  children.  It  is  espe- 
cially a  duty  to  inculcate  upon  their  tender  minds  just  sen- 
timents of  the  Divine  Being,— .of  his  infinite  perfection, 
— of  his  universal  government, — of  his  moral  inspection 
of  the  actions  of  mankind, — and  to  place  before  them  con- 
tinually, in  an  amiable  example,  the  beauty  of  virtue,  the 
dignity  of  piety.  Unless  the  law  of  morals  be  supported 
by  the  force  of  religious  principle,  it  loses  its  most  pow- 
erful control  over  the  human  mind. 

It  requires,  however,  prudence  of  conduct,  and  great 
amiability  of  temper,  to  render  religion  acceptable  to 
youth,  and  to  derive  the  full  benefit  to  their  manners  from 


14S 

its  influence.  There  is  sometimes  a  shade  of  austerity  and 
gloom  thrown  over  the  face  of  piety  by  its  real,  but  mis- 
taken friends,  which  is  calculated  to  alienate  rather  than 
allure  the  young  mind,  and  inspire  it  with  respect  and  love. 
True  religion  is  digniiied,  serene,  and  mild ;  it  invites 
cheerfulness,  while  it  restrains  levity  ;  it  promotes  grav- 
ity, though  an  enemy  to  gloom  ;  and  cultivates  a  noble  and 
manly  devotion  infinitely  distant  from  the  dark  and  dis- 
mal countenance  of  superstition  ;  and  is  equally  distin- 
guished for  the  practice  of  all  the  social  virtues,  as  for  the 
serious  and  decent  discharge  of  all  the  offices  of  piety. 
Religion  should  ever  be  made  respectable  and  engaging 
by  the  liberality  of  its  spirit,  as  well  as  the  purity  of  its 
manners. 

Some  writers,  influenced  by  their  antipathy  to  certain 
principles  of  religion  in  which  they  had  been  early  initi- 
ated, and  the  impressions,  or  the  fears  of  which  after- 
wards cost  them  much  pains  to  efface,  have  run  into  the 
opposite  and  absurd  extreme  of  maintaining  that  all  reli- 
gious instruction  is  pernicious,  filling  the  mind  only  with 
prejudices,  the  more  difficult  to  be  eradicated  because 
they  are  so  deeply  fixed  by  the  force  of  superstitious  fear. 
The  mind,  say  they,  ought  to  be  left  free  and  unembar- 
rassed by  any  early  prepossessions,  to  form,  in  time,  as 
the  understanding  evolves  its  powers,  its  own  principles. 
These  writers,  in  their  zeal  against  religious  prejudice* 


149 

seem  not  to  have  recollected  that  the  young  mind,  contin- 
ually receiving  the  impressions  of  all  objects  with  which 
it  is  surrounded,  must  necessarily  be  affected  with  preju- 
dices of  a  different  kind,  while  reason  is  not  yet  sufficient- 
ly mature  to  form  a  sound  judgment  of  the  opinions,  and 
examples,  which  are  continually  soliciting  its  attention. 
It  will  naturally  receive  a  depraved  bias  from  the  crude 
and  false  sentiments,  and  the  pernicious  examples  in  the 
midst  of  which  it  breathes  as  in  an  infected  atmosphere  ; 
or  ignorance  will  prepare  a  soil  in  which  vice  or  a  grov- 
elling superstition  will  almost  necessarily  plant  its  cor- 
ruption. From  a  fair  and  candid  view  of  these  circum- 
stances, we  have  just  ground  to  conclude  that  a  moral  edu- 
cation on  the  principles  of  a  rational  piety,  or,  if  this  ex- 
ceed the  talents  of  the  parents,  conducted  on  the  religious 
principles  of  even  any  regular  sect  of  christians,  although 
it  may  be  mingled  with  many  speculative  errors,  is  infi- 
nitely to  be  preferred  to  those  accidental,  and,  too  com- 
monly, vicious  impressions,  and  habits  of  thinking,  to 
which  uninstructed  youth  are  exposed  in  their  casual  in- 
tercourse with  society. 

The  next  head  of  parental  duty  which  I  have  named, 
regards  the  provision  which  a  parent  should  make  to  as- 
sist the  establishment  of  his  children  in  the  world,  or 
should  bequeath  to  tlujm  at  his  death.  But  this  is  neces- 
sarily affected  by  so  many  circumstances  that  few  precise 


150 

and  definite  rules  can  be  prescribed  concerning  it.  Sel- 
dom, indeed,  is  there  any  defect  on  the  part  of  parents,  of 
a  desire  to  accumulate  fortune,  and  to  provide  for  the  de- 
cent and  honorable  introduction  of  their  children  into  life. 
But  this  natural  and  laudable  desire  is  often  counteracted 
in  its  aims  by  the  stronger  love  of  indolence,  ostentation, 
or  pleasure.  But  no  considerations  are  more  important 
to  the  happiness  of  children,  and  their  comfortable  pro- 
vision, than  such  a  judicious  economy  in  the  stile  of 
living,  as  will  not  accustom  them  to  indulgeneies,  and 
create  expectations  of  a  future  establishment  in  life, 
which  must  probably  be  disappointed.  Few  mortifications 
are  so  hard  to  be  borne  by  the  young  as  the  being  deprived 
of  customary  enjoyments  to  which  all  their  tastes  and 
habits  have  been  formed ;  and  being  thrown  down  from 
that  rank  in  society  in  which  they  expected,  and  have  been 
accustomed  to  move.  And  whatever  property  he  may  have 
to  bestow  upon  them  at  his  death,  or  whatever  assistance 
he  may  have  it  in  his  power  to  render  in  his  life,  the  im- 
partial duty  of  a  parent  forbids  any  capricious  distinction 
in  the  distribution  among  his  children  ;  and  in  a  free  gov- 
ernment, the  equality  and  fairness  of  popular  institutions, 
should  discourage  any  extraordinary  rights  of  primogeni- 
ture.* 

*  An  important  maxim  has  existed  in  several  agricultural 
countries  in  which  are  found  the  simplest  forms  of  civil  society, 


151 

©F  THE  RIGHTS  OF  PARENTS,  AND  THE  DUTIES  OF 
CHILDREN. 

Out  of  the  obligations  of  parents  to  provide  for  the 
happiness  of  their  offspring  arise,  on  the  one  hand,  the 
rights  of  parental  authority,  and,  on  the  other,  the  duties 
of  filial  obedience  and  affection.  Some  ancient  nations 
appear,  from  their  history,  to  have  invested  parents  with 
an  extreme  authority  over  their  children,  a  consequence, 
probably,  of  the  rudeness  of  their  manners,  and  the  de- 
fect of  their  civil  institutions.  The  Romans,  in  the  first 
ages  of  the  republic,  made  every  father  a  supreme  magis- 
trate in  his  family,  and  clothed  him  with  the  power  of  life 
and  death.  This  was  an  egregious  abuse  of  the  depend- 
ence of  children.  No  man  derives  from  nature  a  right  to 
become  the  occasion  of  existence  to  a  helpless  offspring, 
only  to  render  them  miserable.  TJ:e  rights  of  parents 
spring  out  of  their  obligations.  Obligation  implies  every 
power  necessary  to  give  it  effect ;  and  implies  only  those 
powers.  If,  then,  it  be  the  duty  of  a  parent,  by  a  prudent 
education  adapted  to  his  condition  in  life,  to  prepare  his 
children  to  be  useful  citizens,  to  cultivate  their  minds  in 

that  any  discrimination  in  the  distribution  of  a  parent's  property 
at  his  death,  should  be  in  favor  of  the  youngest  son  ;  on  the  idea 
that  he  must  probably  have  received  the  least  assistance  during 
his  father's  life.  In  this  distribution,  therefore,  the  paternal 
mansion  usually  passes  to  him. 


152 

virtuous  principles,  and  to  form  their  manners  to  virtuous 
habits,  he  possesses,  b\  the  law  of  nature,  the  right  of 
coni lolling  their  actions,  and  directing  their  pursuits  so 
far  as  is  requisite  for  the  attainment  of  these  ends.  And 
if,  before  their  reason  has  arrived  at  sufficient  maturity 
to  govern  their  own  conduct  with  prudence,  they  cannot, 
by  mild  and  persuasive  means,  be  induced  to  apply  with 
diligence  to  the  regular  discharge  of  their  duties,  he  pos- 
sesses the  power  of  moderate  coercion.  But  coercion,  as 
it  ought  ever  to  have  in  view  solely  the  good  of  the  child, 
and  to  be  exercised  with  calmness  and  dignity,  should 
never  be  exerted  to  indulge  caprice  or  passion.  Barba- 
rous corrections  are  not  justified  by  any  rights  which  na- 
ture confers  on  a  parent.  The  utmost  penalty  to  which 
his  lawful  power  extends,  is  cutting  ofT  an  incorrigible 
child  from  the  privileges,  and  advantages  of  his  family. 
But  to  sell  his  child  to  slavery,  as  is  practised  by  some 
barbarian  nations,  or  to  execute  upon  him  capital  punish- 
ment for  any  real  or  supposed  offence,  is  abhorrent  from 
the  feelings,  and  an  enormous  violation  of  the  laws  of 
nature.  But  during  the  minority  of  a  child,  while  his 
immature  judgment,  and  his  inexperience,  render  him  in- 
capable of  consulting,  in  the  best  manner,  for  his  own  in- 
terest, the  parent,  if  he  be  in  that  situation  in  life  which 
renders  it  necessary  that  he  should  gain  his  living  by  the 
strenuous  exertion  of  his  own  talents  bodily  or  mental, 


153 

may  chuse  a  profession  for  his  infant,  and  require  him  to 
give  his  diligent  attention  to  acquire  a  competent  skill  in 
it,  that  he  may  he  put  in  possession  of  an  honest  and  suf- 
ficient resource  for  his  future  maintenance.  He  may, 
with  the  same  view,  and  under  the  pressure  of  the  same 
necessity,  bind  his  infant  to  service  for  a  limited  time. 
But  the  benefit  of  the  child  can  never  require,  and,  there- 
fore, no  pretence  of  this  kind  can  ever  justify  his  being 
sold  to  perpetual  bondage.  We  may,  perhaps,  lay  it  down 
as  a  general  rule,  that  whatever  unnecessarily  opposes 
the  happiness  of  a  child  is  not  within  the  rights  of  a  pa- 
rent. For  the  same  reason,  it  is  not  consistent  with  his 
duty  to  consult  the  wealth  and  grandeur  of  one  branch  of 
his  family,  at  the  expense  of  the  feelings,  the  comfort, 
and  the  reasonable  expectations  of  the  others. 

or  THE  DUTIES  OE  CHILDREN. 

Nature  lays  the  foundation  of  the  duties  of  children  in 

that  strong  instinctive  affection  which  attaches  the  parent 

to  his  offspring,  and  which  consequently  both  requires, 

and  prompts,  on  their  part,  some  correspondent  return  of 

dutiful  attachment  and  love.    This  principle  is  greatly 

strengthened  by  the  tedious  imbecility,  and  dependence 

of  children  on  the  parent's  care  ;  during  which  time  the 

force  of  habit,  and  the  continual  reciprocation  of  offices 

of  mutual  endearment,  aid  the  transition  of  the  affections 
vol.  ii.  v 


15i 

and  augment  their  attractions  on  each  side.  Every  pain 
endured  for  children,  every  solicitude  called  forth  by 
their  wants  and  their  dangers,  every  care  bestowed  upon 
them  for  their  protection,  their  provision,  their  education, 
cultivates  and  increases  the  parental  affection,  and  de- 
mands the  purest  returns  of  filial  duty  and  submission. 
And  the  richest  returns  a  good  son  can  make  to  a  virtu- 
ous parent  is  his  wise  and  successful  improvement  of  all 
the  means  which  parental  affection  has  provided  for  his 
own  honor  and  interest.  A  higher  pleasure  cannot  be  en- 
joyed than  that  delicious  pride  which  swells  the  breast  of 
a  worthy  parent  on  seeing  a  beloved  son  fulfilling  his 
career  honorably  and  usefully  ;  and  a  higher  delight  can- 
not be  tasted  by  an  ingenuous  son  than  the  consciousness 
of  imparting  this  happiness  to  such  a  parent.  It  is  a 
saying  of  Plutarch,*  it  is  forbidden  to  do  injury  to  others ; 
but  it  is  unjust  and  impious  not  always  to  speak  and  act 
in  such  a  manner  as  we  know  will  give  pleasure  to  our 
parents.  And  Epaminondas  exhibited  a  genuine  example 
of  the  principle  of  filial  duty  after  his  celebrated  victory 
at  Leuctra,  when,  amidst  the  congratulations  of  his  friends, 
and  the  applause  of  all  Greece,  he  said,  that  nothing  in 
the  triumphs  of  that  day  gave  him  so  much  pleasure  as 
the  consideration,  that  his  father  and  mother,  who  were 
poor  persons  at  Thebes,  were  still  living  to  enjoy  his 

*  Plut.  de  amor.  frat. 


155 

glory. — Such  a  son  will  always  delight  to  render  his  pa- 
rents happy  by  his  virtues  ,•  if  they  are  liable  to  errors, 
he  will  study  to  cover  them  with  the  mantle  of  filial  love ; 
if,  sometimes,  they  betray  any  weakness  or  caprice  of 
temper,  he  will  recollect  how  much  they  have  endured 
for  him  ;  and,  in  their  declining  age,  it  will  be  peculiarly 
grateful  to  soothe  their  sorrows,  to  relieve  their  necessi- 
ties, and  to  repay,  in  some  measure,  to  their  infirmities, 
the  debt  of  his  early  years.  The  Persians,  by  a  law, 
obliged  children  to  maintain  their  aged,  infirm,  and  in- 
digent parents ;  a  dutiful  son  needs  no  law  but  his  own 
heart. 

All  filial  duties,  however,  are  so  conjoined  with  a  wise 
and  virtuous  education  on  the  part  of  the  parent,  that,  if 
this  is  neglected,  he  loses  much  of  his  claim  to  the  affec- 
tionate obedience  and  deference  of  his  child  through  life. 
A  good  education  in  sober,  industrious,  moral  and  religious 
principles  and  habits,  forms  the  strongest  tie  which  can 
subsist  between  parents  and  children.  And  filial  duty, 
resting  on  this  foundation,  is  not  only  the  chief  strength 
of  domestic  union,  and  happiness,  but  the  surest  basis  of 
all  other  virtues.  It  is  justly  said  by  Cicero,  in  his  ora- 
tion for  Plancus  ;  fundamentum  est  omnium  virtutum 
pietas  in  parentes.*  Not  only  is  it  the  source  of  domestic 
felicity  and  harmony  in  individual  families,  but  where 

*  The  foundation  of  all  the  virtues  is  filial  piety. 


156 

filial  piety  and  good  family  discipline,  and  education,  come 
to  be  incorporated  into  the  characteristic  features  of  the 
national  manners  of  any  people, — as  they  are  the  basis  of 
public  virtue,  they  are  commonly  the  certain  pledge  also 
of  the  public  prosperity.  These  reflections  w ill  assist  to 
furnish  the  true  interpretation  of  the  fifth  command- 
ment of  the  Mosaic  decalogue,  with  the  annexed  promise, 
which  appears  to  have  been  often  but  imperfectly  under- 
stood. "  Honor  thy  father  and  thy  mother,  that  thy  days 
may  be  long  upon  the  land  which  the  Lord  thy  God 
giveth  thee.*'  This  precept  and  promise  is  evidently  ad- 
dressed to  Israel  as  a  community ;  and  is  founded  upon 
the  universal  moral  order  of  providence  established  over 
the  world.  Virtuous  and  well  governed  families  form 
the  basis  of  public  order.  A  dutiful  offspring  moulded 
under  an  excellent  parental  education,  will,  in  their 
purity,  hand  down  the  civil  and  religious  institutions  of 
the  republic  to  the  following  race,  and  transmit,  with 
the  same  care,  the  public  manners  uncorrupted.  Thus 
does  filial  duty  become  the  sure  foundation  of  the  public 
virtue,  and,  with  it,  of  the  stability  and  prosperity  of  the 
nation.  The  full  import  of  this  law,  with  its  annexed 
blessing,  then,  may  be  expressed  in  the  following  peri- 
phrasis:— while  the  families  of  Israel,  and  it  is  true  of 
every  other  civil  community,  shall  preserve  the  domestic 
education  tuid  discipline  prescribed  in  the  national  law. 


157 

pure,  and  the  youth  of  the  nation  shall  remain  modest, 
docile,  and  dutiful,  so  long  shall  you  continue  to  flourish 
as  a  people,  in  the  laud  in  which  God  hath  planted  you; 
for  so  long  will  continue  to  flourish  those  virtues  on 
Which  the  happiness  and  stability  of  nations  depend.* 

*  It  is  impossible  that  this  promise  should  bear  a  reference 
to  individuals  in  their  separate  capacity;  because  long  life  has 
never  been  the  peculiar  and  exclusive  blessing  of  filial  piety, 
though  the  stability  of  nations  has  been  always  connected  with 
virtuous  men,  and  national  virtue  with  the  modesty  and  obedi- 
ence of  youth.  This  command  to  youth  to  honor  and  obey  their 
parents,  with  this  peculiar  promise  annexed  to  it,  was  intimate- 
ly conjoined  with  the  system  of  domestic  education  established 
among  that  wonderful  people.  Nothing  can  exceed  the  care 
and  attention  of  the  great  legislator  of  Israel  to  have  all  the 
children  of  the  nation  perfectly  instructed  in  their  religion,  and 
their  duties  as  citizens  and  as  men,  and  to  institute  in  every 
family  such  a  faithful  discip.ine  as  would  most  effectually  se- 
cure this  end.  After  having  formed  that  wise  and  extraordina- 
ry code  which  embraced  the  whole  compass  of  their  religious, 
civil,  and  moral  institutions,  he  adds,  under  the  most  solemn 

sanctions  : ind  ye  shall  teach  them  to  your  children,  speaking 

of  them  when  thou  sittest  in  thy  house,  and  when  thou  walkest 
by  the  way,  when  thou  liest  down,  and  when  thou  risest  up. 
And  thou  shalt  write  them  upon  the  doorposts  of  thy  house, and 
upon  thy  gates.  And,  for  what  purpose  was  all  this  pious 
zeal  ? — For  the  same  expressed  in  the  commandment  just 
quoted  : — that  your  days  may  be  multiplied,  that  is,  the  clays  of 
the  nation,  and  the  days  of  your  children  in  the  land  which  the 
Lord  sware  unto  your  fathers  to  give  them  as  the  days  of  heaven 
upon  the  earth.  Evidently  implying  that,  if  they  should  con- 
tinue to  maintain  this  holy  care  in  the  education  of  their  fami- 


158 

The  duties  of  children  do  not  cease  with  their  depend- 
ence. In  the  breast  of  an  ingenuous  child,  the  remem- 
brance of  a  thousand  obligations,  and  a  thousand  endear- 
ments, will  last  through  life ;  and  the  filial  affections, 
strengthened  by  time,  reflection,  and  experience,  will 
display  themselves  in  innumerable  and  nameless  delica- 
cies of  attention  to  the  wants,  the  infirmities,  the  wishes 
of  parents ;  especially  in  their  declining  years,  when  it 
often  happens  that,  having  lost  the  greater  part  of  their 
early  friendships,  and,  with  them,  their  finest  relish  for 
life,  they  have  left  no  other  consolations  but  those  of 
religion,  and  the  affections  of  their  children. 

lies,  and  their  children  should  grow  up  under  this  culture  duti- 
ful and  obedient  to  all  their  instructions,  their  national  exist- 
ence and  prosperity  should  be  prolonged  under  the  good 
providence  of  God,  and  be  co-extensive  in  point  of  time,  with 
their  virtues. 

Similar  ideas  with  regard  to  the  institution  and  discipline  of 
youth  prevailed  in  most  of  the  states  of  antiquity,  as  long  as 
they  preserved  the  simplicity  of  their  manners,  and  the  energy 
of  their  character.  As  we  see  strikingly  exemplified  in  Xeno- 
phon's  account  of  the  Persian  institutions ;  in  Livy's  history  of 
the  manners  of  the  primitive  Romans  ;  and  in  the  picture  drawn 
of  the  Spartan  education  by  the  Abbe  Barthelemy.  Pythagoras, 
who  borrowed  a  great  part  of  his  institutions  from  India,  es- 
tablished in  his  school  a  noviciate  of  seven  years  silence,  in 
which  his  disciples  were  permitted  only  to  listen,  with  respect- 
ful attention,  to  the  precepts  of  their  master,  and  to  practice 
the  lessons  of  submission  and  obedience  which  were  prescribed 
to  them. 


159 


LECTURE  XXI. 


ON  THE  RELATION  OF  MASTER  AND  SERVANT. 
CONTENTS. 

The  true  origin  of  the  relation  of  servant,  and  master.—- 
Various  ways  of  becoming  subject  to  service — reciprocal 
duties  of  master  and  servant.— Jit  the  beginning  of  the 
Christian  (era,  the  only  servants  xvere  slaves.— The  dif- 
ference between  them—The  question,  whether  slavery  be 
lawful.— The  causes  which  have  been  alledged  for 
slavery, — crimes, — debt, — captivity.  Their  insufficien- 
cy.— The  iniquity  of  the  African  commerce  for  slaves  : 
Of  slavery  in  despotic,  and  in  free  countries. — The 
question,  whether  justice  now  requires  the  universal 
emancipation  of  the  slaves  in  the  United  States  ;  or, 
whether  it  can  be  effected  consistently  with  the  public 
safety.  The  importance  of  attempting  it,  if  it  be  now 
possible. — The  obstacles,  however,  hardly  to  be  sur- 
mounted. 

THE  next  domestic  relation  which  occurs  to  be  con- 
sidered is  that  of  master  and  servant. 

In  the  progress  of  society,  and  under  the  operation  of 
laws  which  secure  to  everv  citizen  the  fruits  of  his  own  in- 


160 

dustry  and  skill,  distinctions  in  property  will  necessarily 
arise.  Some,  by  a  well-directed,  or  fortunate  industry, 
will  accumulate  wealth,  which  will  enable  them  to  pur- 
chase the  services  of  others,  who,  by  mismanagement, 
misfortune,  or  the  want  of  address,  having  fallen  into  pov- 
erty, will  be  obliged  to  sell  their  labors.  This  is  origi- 
nally the  only  reasonable  ground  on  which  the  relation 
of  master  and  servant  can  be  founded.  It  is  bottomed 
upon  the  principles  of  all  fair  and  equitable  commerce. 
Labor  is  a  commodity  brought  into  the  market;  and  the 
price  of  it  must  depend  on  the  number  of  those,  on  the 
one  hand,  who  desire  to  purchase,  and  of  those,  on  the 
other,  who  are  obliged  to  sell.  In  a  contract  thus  formed, 
under  the  supreme  guardianship  of  the  laws,  the  servant 
is  always  secured  against  injustice  and  oppression. 

A  man,  through  the  pressure  of  poverty,  may  not  only 
be  obliged  to  give  his  own  services  for  hire  ;  but  he  may 
reasonably  subject  his  children  to  a  temporary  servitude 
for  their  benefit.  At  the  same  time,  he  has  it  always  in 
his  power,  of  which  a  prudent  and  humane  parent  will 
doubtless  avail  himself,  to  secure  for  them  by  contract, 
comfortable  provision,  and  equitable  treatment ;  and  to 
provide  for  them  such  an  education  as  will  enable  them 
honestly,  and  decently,  in  their  station,  to  obtain  their 
own  living,  after  they  shall  be  restored  to  their  freedom. 
— If  the  children  of  the  poor,  are  neglected  by  their  pa- 


161 

rents,  or  if  they  have  early  become  orphans,  and  are  likely 
to  fall  into  want,  and,  by  the  infelicity  of  their  situation, 
to  be  led  into  profligate  habits,  and  thus  become  a  charge, 
or  a  nuisance  to  society,  society  may  enter  into  the  rights 
of  parents,  or  rather,  may  exert  a  right  inherent  in  itself, 
and  necessary  to  its  own  preservation,  and  happiness,  of 
disposing,  for  a  limited  period,  of  the  service  of  these 
children,  under  equitable  conditions,  calculated  for  the 
mutual  benefit  of  the  master,  and  of  the  child  so  bound  to 
service. 

These  various  ways  of  forming  the  relation  of  master 
and  servant,  may  all  be  considered  as  being  founded  in 
contract,  in  which  an  adequate  price  is  paid  by  the  mas- 
ter for  the  labor  of  the  servant,  and  the  servant  repays, 
by  his  labor,  the  benefits  he  receives. 

The  duties  of  masters  and  servants  may  all  be  summed 
up  in  equity  on  the  one  hand,  and  fidelity  on  the  other. 
If  it  be  asked  what  equity,  or  fidelity  requires  in  these 
relations  respectively,  I  answer,  the  fulfilment  of  what- 
ever lawful  engagements  are  expressly  stipulated  in  the 
contract,  or  are  reasonably  presumed  to  be  implied  in  it : 
and  these  reasonable  implications  are  always  to  be  judged 
of  according  to  the  general  and  known  customs  of  the 
country. — I  say  the  fulfilment  of  all  lawful  engagements  ; 

because  no  contract  for  the  performance   of  things  in 
vol.  ii.  x 


162 

themselves  unlawful,  is  obligatory.  It  contradicts  an  an- 
tecedent, aad  superior  obligation.  No  power  can  justifia- 
bly impose  a  command  which  requires  the  violation  of  any 
moral,  or  religious  duty ;  and  no  subordination  in  rank 
can  justify  obedience. 

Servants,  notwithstanding  the  humility  of  their  state, 
are  susceptible  of  the  common  feelings  of  human  nature. 
And  although  they  are  secured  by  the  laws  against  ex- 
treme oppression,  yet  their  dependence,  which  may  often 
expose  them  to  the  insults  of  pride  and  caprice,  puts  their 
happiness  very  much  in  the  power  of  their  superiors. 
Hence  arises  a  duty  on  the  part  of  the  master,  springing 
out  of  the  general  obligations  of  humanity,  to  avoid  all 
unnecessary  harshness  ;  all  haughtiness  and  insolence  of 
treatment  and  demeanor  towards  his  domestics,  and  to 
address  them,  at  all  times,  with  such  kindness  of  speech 
and  courtesy  of  manner,  as  shall  make  them,  as  little  as 
possible,  sensible  of  the  disadvantages  of  their  situation  in 
society. 

Another  obligation  of  still  superior  importance  lies  on 
every  master,  arising  out  of  the  universal  law  of  piety 
and  virtue  ;  and  that  is,  to  employ  the  influence  which  his 
station  gives  him  in  promoting  the  good  morals  of  his 
domestics,  and  to  afford  them  such  means  of  instruction, 
and  to  establish  such  a  prudent  discipline  in  his  family, 


163 

as  will  tend  to  preserve  them  from  the  vices,  and  the 
temptations  to  which,  hy  their  state,  they  are  peculiarly 
exposed.  The  highest  duty  which  religion  and  humanity 
exact  of  a  man  whom  Providence  has  placed  in  such  a 
superior  relation,  is  to  protect  and  promote  their  virtue ; 
and  in  this  henevolent  and  most  reasonahle  case  he  will 
find  also  his  own  interest.  Xo  service  is  so  faithful  as 
that  which  is  governed  hy  strict  principles  of  morality, 
and  religion. 

"When  Christianity  first  appeared  in  the  world,  the  re- 
lation of  servant,  as  it  is  here  explained,  nowhere  ex- 
isted. We  find  in  that  age  only  masters  and  slaves.  The 
mild  genius  of  the  christian  religion  early  ameliorated  the 
condition  of  that  unfortunate  class  of  men  ;  and  its  benev- 
olent influence,  concurring  with  other  causes  in  the  pro- 
gress of  society  in  Europe,  has  at  length  entirely  banished 
slavery  from  that  highly  civilized  portion  of  the  globe. 

This  abject  state  of  human  nature  still  exists  over  all 
the  continents  of  Asia  and  Africa,  and  has  unhappily  been 
suffered  to  mingle  itself  with  the  original  institutions  of 
our  own  country.  A  slave  is  not,  like  a  servant,  bound 
by  contract  for  a  limited  time,  and  under  specified  ar.d 
reasonable  conditions,  to  perform  particular  services ;  but 
is  the  absolute  property  of  his  master;  and  the  kind  and 
degree  of  his  services  have  no  other  limit  than  Lis  mas- 
tei's  will. 


16i 

On  this  subject  a  most  important  moral  question  pre- 
sents itself  :  Is  slavery  on  any  ground  consistent  with  the 
natural  laws  of  justice  and  humanity  ?  Three  causes  have 
been  stated  by  different  moral  and  political  writers  as 
sufficient  to  justify  tbis  degradation  of  human  nature  :— . 

ciimes, — debt, — and  captivity. Criminals  of  certain 

grades,  it  is  true,  may  justly  be  confined  to  hard  labor 
under  the  authority  of  the  public  magistrate,  in  order  to 
repair  the  injuries  committed  by  their  crimes,  or  to  in- 
flict a  salutary  punishment  for  such  as  cannot  be  repaired. 
Fraudulent  debtors  may  well  be  subjected  to  a  similar 
correction.  But  it  would  be  cruel  to  inflict  on  misfortune 
a  penalty  which  should  be  reserved  only  for  crime.  Crim- 
inals of  this  grade,  however,  should  be  regarded  only  as 
servants  of  the  public,  and  never  subjected  to  the  power 
of  injured  individuals.  If  creditors  were  to  be  constituted 
the  masters,  it  would  be  necessary  to  confer  on  them  such 
rigorous  rights  as  could  not  fail  to  offend  against  human- 
ity, and  would  afford  the  most  dangerous  examples  in  a 
free  country.  It  was  a  barbarous  law  of  the  Romans 
which  subjected  the  person  of  the  debtor  to  the  absolute 
power  and  will  of  the  angry  creditor.  The  enormous 
abuses  to  which  it  gave  rise  produced  its  repeal  among  a 
people  by  no  means  distinguished,  at  that  period,  for  the 
humanity  of  their  character. 


165 

Captivity,  which  has,  in  all  ages,  and  in  all  countries, 
except  among  the  modern  nations  of  Europe,  been  the 
most  universal  cause  of  slavery,  is  the  most  unjust  title 
of  all  to  the  servile  subjection  of  the  human  species.  It 
is  cruel  to  avenge  on  individuals  the  injuries  of  their 
nation,  or  rather  of  its  government.  In  civilized  warfare 
generous  foes  will  inflict  no  other  evils  on  an  enemy  than 
such  as  they  conceive  to  be  necessary  to  bring  the  public 
hostilities  to  a  just  and  successful  termination.  It  is 
even  good  policy  to  treat  prisoners  with  the  greatest 
lenity  which  is  consistent  with  their  safe-keeping.  An 
enemy  will  fight  with  less  obstinacy  against  a  humane 
nation.  And  captives,  when  permitted  to  labor  for  hire 
in  their  respective  arts,  or  in  the  cultivation  of  the 
ground,  may  supply,  in  some  measure,  the  deficiency  of 
hands  created  by  enlistments  in  the  army.  But  to  reduce 
them  to  slavery  is  contrary  both  to  justice  and  humanity. 
Yet  captivity  in  war  was  almost  the  sole  ground  of  that 
extensive  slavery  which  disgraced  the  policy  of  the 
Greeks  and  Romans,  and  of  the  barbarous  rights  exer- 
cised over  their  slaves.  It  was  a  principle  with  them 
that  the  conqueror  had  always  the  cruel  right  of  putting 
an  enemy  to  death;  whence  they  concluded,  with  stronger 
reason,  that  he  possessed  the  milder  right  of  reducing 
him  to  slavery.  The  principle  is  false,  and  the  con- 
clusion inhuman.   No  law  of  just  and  generous  warfare 


166 

authorizes  the  victor  to  put  to  death  a  disarmed  and  un- 
resisting enemy. 

Still  more  iniquitous  is  that  barbarous  policy  which 
excites  wars  among  the  ignorant  and  savage  tribes  of 
Africa,  with  the  view  of  purchasing  for  slaves  the 
wretched  captives.  Indeed  the  whole  of  the  African 
trade  for  slaves,  in  its  principles,  in  its  conduct,  in  the 
miseries  it  has  introduced  into  an  extensive  region  al- 
ready too  miserable;  and  in  the-cruel  mode  in  which 
these  unhappy  wretches,  after  being  torn  from  their 
country,  are  pinioned  down  in  the  holds  of  the  vessels 
which  convey  them  to  the  remotest  parts  of  the  earth, 
to  be  sold  like  brutes  to  perpetual  bondage,  is  among  the 
most  atrocious  inroads  upon  justice  and  humanity  which 
have  ever  been  practised  in  any  age,  or  by  any  nation. 
The  pretences  which  are  made  to  justify  it  are  as  im- 
pudent, as  the  traffic  is  inhuman — that  a  civilized  peo- 
ple have  a  right  to  compel  such  ignorant  savages  to  labor 
for  their  convenience  and  pleasure*-— that  a  people  pos- 
sessing the  knowledge  of  the  true  religion  may  lawfully 
seize  such  gross  and  stupid  idolaters,  and  transport  them 

*  Such  were  the  imperfect  ideas  of  morality  which  pre- 
vailed among  the  most  enlightened  nations  of  antiquity,  that 
Aristotle  maintained  that  a  civilized  fieojile  has  a  natural  right 
to  make  war  ujion  barbarians,  and,  consequently,  to  reduce 
them  to  slavery. 


167 

to  a  country  where  they  may  be  better  instructed;* 
when,  God  knows,  even  this  hypocritical  pretence  never 
enters  into  the  views  either  of  the  slave-merchant,  or 
the  purchaser. — But  a  more  plausible  palliative  for  the 
practice  is  the  idea  that  many  of  these  unhappy  men 
were  slaves  in  their  native  country;  and  that  all  must 
have  been  more  miserable  at  home,  half-famished  amidst 
their  burning  and  barren  sands,  and  subjected  to  a  dark 
and  bloody  despotism,  than  they  can  be  in  a  mild  and 
plentiful  region,  among  a  people  of  polished  manners. 
This  is  making  the  prejudices  of  our  self-love  the  judge 
of  their  happiness,  while  at  the  same  time,  our  own  in- 
terest is  the  advocate. — There  is  no  country,  however 
severe  the  climate,  and  however  barren  the  soil,  from 
which  a  native  is  not  unhappy  to  be  exiled.  The  ideas,  the 
habits,  the  pleasures  of  men,  are  all  inseparably  blended 
with  the  scenes,  with  the  society,  with  all  the  objects 
which  have  been  familiarized  to  them  in  the  country 
which  gave  them  birth.  A  Laplander  prefers  his  snows 
and  rocks  to  the  most  cultivated  landscapes  of  France 
or  England.  An  American  savage  perceives  more  de- 
light in  his  solitary  wilds,  and  even  in  the  ashes  of  his 

*  This  was  a  principle  of  the  Romish  Church  in  the  grossest 
ages  of  her  superstition  :  and  on  the  pretence  of  this  detestable 
principle,  the  Spaniards  exterminated,  or  reduced  to  the  most 
abject  condition  of  servitude,  the  miserable  natives  of  Mexico 
and  Peru. 


168 

wigwam,  than  he  would  in  the  most  splendid  apartments 
of  a  palace. — Men  deceive  themselves  continually  by 
false  pretences,  in  order  to  justify  the  slavery  which  is 
convenient  for  them. 

There  are  countries,  indeed,  in  which  the  very  cor- 
ruption of  the  government  has  rendered  slaverj'  necessa- 
ry ;  and  where  it  is  so  congenial  with  all  the  political 
and  civil  institutions  and  habits  of  the  people,  that  it 
seems  to  lose  the  injustice  of  its  nature.  In  a  des- 
potism, every  grade  of  the  community  is  already  en- 
slaved, and  the  prince  himself  is  the  slave  of  his  slaves. 
Slaves  here  are  not  relatively  that  degraded  race  of 
beings  which  they  necessarily  must  be  in  free  states. 
They  attain  a  degree  of  consequence  from  their  utility  to 
indolent  and  voluptuous  lords,  all  whose  affairs  they  are 
accustomed  to  manage;  whose  interest  and  pleasures  are 
almost  wholly  in  their  power.  The  poorer  classes  of  the 
people,  in  these  countries,  often  rush  to  slavery  with 
eagerness  as  their  protection  from  worse  evils.  No  con- 
dition is  so  oppressed  and  abject  among  them  as  that  of 
a  poor  freeman  in  the  vicinity  of  a  rich  lord.  He  is 
liable,  from  the  insolence  of  power,  to  the  most  unjust 
encroachments  on  his  rights,  and  the  most  humiliating 
insults  in  his  person.  But,  when  he  foregoes  his  wretch- 
ed freedom,  for  the  privilege  of  slavery  to  some  wealthy 


169 

satrap,  interest  often  leads  his  mercenary  master  to  pro- 
tect him. 

In  a  free  country,  on  the  other  hand,  the  poorest  man 
is  protected  by  the  laws ;  and  between  a  freeman  and  a 
slave,  there  is  such  a  wide  distinction,  that  the  slave,  by 
comparing  his  state  with  that  of  a  citizen,  a  comparison 
which  continually  meets  his  view,  must  feel  his  condition 
to  be  peculiarly  humiliating  and  degraded. 

The  cruel  and  mercenary  policy  of  those  commercial 
nations  in  Europe  who  planted  colonies  in  the  new  world, 
gave  birth  to  that  trade  in  African  slaves,  which,  on  the 
score  of  its  injustice  and  inhumanity,  merits  the  strongest 
reprobation.  Hence  the  origin  of  that  extensive  system 
of  slavery  which  exists  in  several  of  the  United  States. 
— But  here  our  enquiries  must  receive  a  new  direction. 
Is  that  slavery  which  was  unjust  in  its  origin,  equally  un- 
just in  its  continuance  ?  All  men  condemn  the  barbarity 
of  dragging  the  simple  Africans  from  their  native  coun- 
try. But  America  is  the  country  of  their  descendents,  and 
it  would  now  be  equally  cruel  to  tear  them  from  the  soil 
in  which  they  have  grown  up,  and  to  send  them  back  to 
Africa.*    Servitude  is  undoubtedly  a  hard  lot  to  the  sen- 

*  And  their  general  and  indiscriminate  emancipation,  as  we 
shall  shew  in   the  progress  of  the  lecture,  would  be  attended 
with  many,  and  almost  insuperable  difficulties. 
vol.  ii.  Y 


170 

nihilities  of  freemen  ;  but  the  habits  and  ideas  of  these 
people  being  accommodated  to  it  from  their  infancy,  it 
does  not  press  with  the  same  severity  upon  their  feelings. 
And  hard  as  their  lot  appears  to  be,  it  cannot  be  denied 
to  be  preferable  in  every  thing,  except  the  sense  of  liberty, 
to  what  it  would  have  been,  born  of  the  same  parents  in 
the  original  country  of  their  race.  But  that  precious 
sense  of  liberty,  renders  tolerable  to  the  savage  poverty 
and  wretchedness,  the  most  barren  sands,  and  the  most 
howling  wilderness.  To  confer  on  our  American  slaves, 
therefore,  a  privilege  so  dear  to  human  nature ;  and  other- 
wise, as  far  as  possible,  to  ameliorate  their  condition,  are 
certainly  objects,  worthy  a  humane  legislation.  But  our 
generous  feelings  may  sometimes  rush  too  precipitately 
to  their  end,  as  well  as  worse  passions.  And,  in  accom- 
plishing this  benevolent  work,  if  it  can  be  accomplished 
at  all,  in  those  states  into  the  constitution  and  manners 
of  which  slavery  is  most  deeply  incorporated,  great  pre- 
caution must  be  used  not  to  render  their  emancipation  a 
worse  evil  than  their  servitude.' — But,  in  the  first  place, 
private  justice  on  the  one  hand,  and  on  the  other  that 
natural  selfishness  which  infallibly  regulates  the  councils 
and  decisions  of  the  great  bodies  and  communities  of 
mankind,*  will  oppose  insuperable  difficulties  to  its  cxe- 

*  Individuals  may  Frequently  be  found  who  are  capable  of 
rising  above  every  selfish  consideration.    This  is  seldom  the 


irt 

eution The  citizens  of  those  states  hold  a  property  in 

slaves  to  a  very  large  amount,  acquired  under  the  sanc- 
tion of  the  laws.  The  laws,  therefore,  could  not  equita- 
bly compel  them  to  make  a  sacrifice  of  so  great  value,  to 
the  convenience  and  comfort  of  any  class  of  men.  And 
neither  justice  nor  humanity  requires  that  the  master, 
who  has  become  the  innocent  possessor  of  that  property  . 
should  impoverish  himself  for  the  benefit  of  his  «lave. 
On  the  ground  of  compassion  for  this  degraded  race,  I  do 
not  know  that  the  present  holders  are  exclusively  called 
upon  to  suffer  the  loss  which  must  be  incurred  by  a  gen- 
eral emancipation. — One  mode,  indeed,  has  been  sug- 
gested, in  which  it  is  conceived  that  the  demands  of  jus- 
tice on  the  part  of  the  master,  may  be  reconciled  with  the 
wishes  of  benevolence  with  regard  to  the  slave  ;  and  that 
is,  by  making  an  equitable  estimate  of  the  value  of  each 
slave,  and  of  the  value  of  his  labor  for  a  year,  in  conse- 
quence of  which,  the  state  might  bind  these  slaves  to 
their  present  masters,  as  in  other  eases  of  bound  servants, 
for  a  term  of  years,  to  be  calculated  from  the  preceding 
estimates ;  after  which  they  would  naturally  pass  to  the 
enjoyment  of  liberty.  To  this  might  be  added  a  law  de- 
claring all  who  should  be  born  in  a  servile  condition  after 

case  of  men  acting  together  in  a  mass.  Therefore  we  so  often 
see  the  hardest  and  most  cruel  things  done  by  such  bodies  with- 
out any  compunction. 


172 

the  passing  of  that  act,  free  after  a  certain  age  ;  only  al- 
lowing sufficient  time  by  their  labor  to  recompence  their 
masters  for  the   expense  of  their  maintenance  in  child- 
hood.— All  that  could  be  said  of  such  a  law  would  be  that 
it  would  be  less  unjust  than  one  proclaiming  an  immediate 
and  universal  emancipation.    What  free  people  would  al- 
low their  legislators  to  dispose,  in  the   same  manner,  of 
any  other  portion  of  their  property  ? — But  if  it  were  free 
from  every  objection  on  that  head,  great  and  numerous 
difficulties  would  oppose  themselves  to  its  execution  :  dif- 
ficulties which  will  not  readily  suggest  themselves,  per- 
haps can  hardly  be  conceived  by  men  who  have  not,  at 
sometime,  been  familiar  with  the  institutions  of  slavery, 
and  witnessed  their  effects  on  the  habits,  ideas,  and  whole 
state  of  society.    One  difficulty  only  I  will  mention,  which 
a  prudent  policy,  always  attentive  to  the  public   safety 
and  tranquility,  will  naturally  oppose  to  such  a  general 
manumission  as  is  here  contemplated.    No  event  can  be 
more  dangerous  to  a  community  than  the   sudden  intro- 
duction into  it  of  vast  multitudes  of  persons,  free  in  their 
condition,  but  without  property,  and  possessing  only  the 
habits  and  vices  of  slavery.   Theft,  plunder,  and  violence, 
would  become   common  modes  of  supplying  their  wants, 
among  a  people  who  had  been  used  to  labor  only  through 
compulsion,   and  whose  servile  principles  would  take  off 
the  shame  of  the  basest  actions.    Delivered   from  their 


former  restraints,  they  would  become  idle  and  profligate. 
Few  of  them  willing  to  labor,  and  fewer  finding  regular 
and  constant  employment,  or  receiving  wages  sufficient 
to  support  them  and  their  children  j*  they  would  often 
seek  their  provision  by  plunder,  and  often  by  corrupting 
the  fidelity  of  the  slaves.  In  the  natural  progress  of  events, 
therefore,  Ave  should  soon  see  property  every  where  in- 
vaded, public  safety  disturbed,  and  even  domestic  peace 
and  security  constantly  endangered. 

From  these,  and  many  other  causes,  it  will  be  evident 
that  the  emancipation  of  the  African  race  in  the  United 
States,  if  it  ever  be  accomplished,  must  necessarily  be  the 
slow  and  gradual  work  of  time  ;  but  as  it  is  an  event  ar- 
dently desired  by  the  friends  of  humanity  and  liberty,  the 
laws  perhaps  ought  to  attempt  it.  Yet  in  this  attempt  they 
will  certainly  have  a  most  delicate  and  arduous  task  to 
perform  ;  to  facilitate  manumission,  and  yet  guard  against 
the  evils  to  which  it  is  exposed  ;  to  encourage  the  ideas 
of  universal  liberty,  and  yet  check  the  indiscreet  benevo- 
lence of  certain  owners  of  slaves  who,  either  during  their 
life,  or  at  their  death,  may  be  disposed  to  emancipate 
them,  as  an  act  of  extraordinary  merit,  without  having 
made  provision  to  render  that  liberty  useful  to  the  slave, 

*  This  -would  necessarily  be  the  case,  as  long  as  slavery  still 
subsisted  ;  the  free  would  seldom  be  employed  while  the  mas- 
ter could  be  served  by  his  slaves. 


174 

or  safe  to  the  public  ;  that  is,  indeed,  to  throw  on  society 
a  multitude  of  idle  dependents,  with  a  mass  of  servile 
vices,  which  no  citizen  has  a  right  to  do,  either  for  the 
mistaken  relief  of  his  conscience,  or  the  display  of  his 
vanity.  In  a  word,  the  laws  ought,  perhaps,  to  hold  out 
the  hope,  and  the  means  of  freedom  to  all,  yet  so  as,  if 
possible,  to  admit  those  only  to  a  participation  of  its  pri- 
vileges who  shall  have  previously  qualified  themselves 
by  good  moral  and  industrious  habits,  to  enjoy  it  in  such 
a  manner  as  to  be  beneficial  to  themselves,  and  to  the 
state. 

For  this  end  might  not  the  laws  favor  the  granting  of 
a  certain  pccuUum*  to  slaves,  to  be  employed  wholly  for 
their  own  benefit,  which  might  be  sufficient  to  produce, 
in  a  course  of  years,  longer  or  shorter  according  to  the 
industry  and  skill  of  each  slave,  a  revenue,  adequate  to 
the  purchase  of  his  own  freedom  ?  In  order  to  impose  a 
proper  check  upon  the  avarice  of  masters,  a  certain  method 
might  be  fixed  by  law,  by  which  the  price  of  any  slave 
should  be  determined.  This  sum  the  most  rigorous  mas- 
ter should  be  obliged  to  accept.  A  benevolent  master 
would  often   forego  it   in  consideration  of  the  former 

*  By  this  fieculiu?n  is  intended  a  certain  portion  of  ground 
allotted  to  the  slave  for  his  own  exclusive  labor,  and  a  reason- 
able portion  of  time  allowed  him  each  day,  or  each  week,  to 
cultivate  it,  and  to  bring  into  the  market  the  product  of  his  in- 
i     •  v  for  his  own  benefit. 


175 

services  rendered  by  his  slave.  It  would  then  become  a 
small*  but  valuable  fund  ou  which  to  commence  a  new 
course  of  industry,  and  with  which  to  animate  and  assist 
his  opening  hopes.  In  this  way  liberty  would  be  within 
the  reach  of  all  who  possessed  health,  and  a  proper  dis- 
position to  labor.  Those  who  should  be  too  indolent  to 
purchase  it,  would  not  deserve  it;  and  if  it  were  bestowed 
on  them,  would  abuse  it.  This  seems  to  be  the  most 
probable  means  by  which  slaves  can  be  introduced  to  the 
possession  of  freedom  with  such  good  habits  as  shall  be 
at  once  useful  to  themselves,  and  not  dangerous  to  the 
public  order  and  safety.  On  this  principle  the  claims  of 
justice,  and  of  a  wise  benevolence  might  be  equally  satis- 
fied. None  would  be  excluded  from  the  reasonable  hope 
of  liberty,  but  the  idle  and  undeserving;  and  they,  no 
longer  than  till  they  should  render  themselves  worthy  to 
possess  it.* 

*  Such  an  institution  might  be  the  more  easily  carried  into 
effect  in  many  of  the  southern  states ;  because,  so  mild  is  the 
form  of  slavery  there  at  present,  that  it  is  customary  to  exact 
of  any  field  slave  only  a  definite  portion  of  labor  in  the  day, 
called  a  task.  This  task  is  a  small  square  of  ground  marked 
out  by  the  overseer  in  the  morning,  which  is  equal  for  each 
slave,  and  is  usually  calculated  according  to  the  strength  of  the 
weakest  hand  in  the  field.  To  cultivate  this  is  all  that  is  re- 
quired in  the  day.  The  strongest  hands  often  finish  their  tasks 
before  the  middle  of  the  afternoon.  They  then  voluntarily  help 
the  weaker,  if  they  have  any  particular  friendships.    If  not,  the 


176 

One  danger  would  probably  arise  from  liberty  obtained 
even  in  this  way.  The  prejudices  which  exist  against  a 
union  of  the  whites  with  the  blacks,  would  render  it  im- 
possible to  amalgamate  the  two  races.  The  free  blacks, 
retaining  that  habitual  sense  of  inferiority  acquired  in  ser- 
vitude, and  nourished  by  the  supercilious  contempt  of  the 
whites,  would  naturally  throw  themselves  into  the  society 
of  the  slaves.  Such  an  association  would  be  injurious  to 
both.  It  would  impair  the  motives  which  should  prompt 
the  freed  man  to  aspire  to  respectability  by  his  property 
and  his  virtue  ;  it  would  weaken  the  subordination,  and 
corrupt  the  submissive  duty  of  the  slave. — One  provi- 
sion alone  occurs  to  me  to  prevent  this  evil ;  and  that  is, 
assigning  a  large  district  out  of  the  unappropriated  lands 
of  the  United  States,  in  which  each  black  freed  man,  or 
freed  woman,  shall  receive  a  certain  portion  of  land  in 
absolute  property,  together  with  such  privileges  as  would 
induce  them  to  prefer  a  settlement  in  the  new  territory  to 
remaining  in  the  vicinity  of  their  former  servitude.  In 
order  to  bring  the  two  races  nearer  together,  and,  in  a 
course  of  time,  to  obliterate  those  wide  distinctions  which 
are  now  created  by  diversity  of  complexion,  and  which 

overseer,  or  the  master  demands  no  more  of  them  till  the  next 
morning.  What  an  admirable  opportunity,  together  with  other 
portions  of  time  which  are  already  allowed  them,  for  relaxation 
or  amusement,  to  improve  a  pcculium  ! 


177 

might  be  improved  by  prejudice,  or  intrigue,  to  nourish 
sentiments  of  mutual  hostility,  every  white  man  who 
should  marry  a  black  woman,  and  every  white  woman 
who  should  marry  a  black  man,  and  reside  within  the  ter- 
ritory, might  be  entitled  to  a  double  portion  of  land.  And 
the  magistrates,  for  a  considerable  period,  ought  all  to  be 
appointed  from  the  white  nation. 

But,  other  regulations  upon  this  subject,  and  other  ad- 
vantages to  be  derived  from  the  institution,  it  is  not,  per- 
haps, necessary  to  endeavor  further  to  point  out.  I  fear 
that  neither  the  general  government,  nor  the  governments 
of  the  individual  states,  will  feel  themselves  under  any 
obligation  to  make  great  sacrifices  in  order  to  deliver  this 
humiliated  race  of  men  from  the  bondage  which  at  pre- 
sent degrades  them,  and  to  raise  them  in  time  to  the  true 
dignity  of  human  nature,  in  a  state  of  liberty,  and  self- 
government. 

It  is  of  high  public  concern  that  slavery  should  be 
gradually  corrected,  and,  at  length,  if  possible,  entirely 
extinguished  :  for  wherever  it  is  incorporated  with  the 
institutions  of  a  republic,  it  will  be  productive  of  many 
moral,  and  political  evils.  And  where  the  citizens  are  not 
constantly  occupied  in  the  industrious  pursuits  of  agri- 
culture, or  the  exercise  of  arms,  as  was  the  case  at  Sparta, 

and  at  Rome,  it  tends  to  introduce  general  habits  of  indo- 
voi.  ii.  z 


178 

lenee  and  indulgence,  the  fruitful  source  of  a  thousand 
other  vices,  which  corrupt  the  energies  of  society,  and 
enfeeble  its  defensive  force. 

There  is  another  view  in  which  good  policy  requires 
that  those  states,  in  which  the  number  of  slaves  greatly 
exceeds  the  free  population,  should  adopt  measures  to  di- 
minish that  disproporlioned  excrescence  so  dangerous  to 
the  political  body.  The  time  must  come  when  these  slaves 
will  feel  their  force  \  and  there  will  not  be  wanting  among 
them  men  of  a  daring  and  enterprising  genius  to  rouse  it 
into  action,  to  the  great  hazard  of  the  public  safety. 
Every  revolt,  and  even  every  appearance  of  an  insurgent 
and  seditious  spirit  among  the  slaves,  must  subject  them 
to  new  severities  ;  and  severity  will  multiply  revolts. 
Slavery  is  preparing  at  some  future  period,  much  indivi- 
dual misery,  and  frequent  and  dangerous  convulsions  for 
the  republic.  It  is  a  volcano  which  sleeps  for  a  time 
only  to  burst  at  last  upon  the  unsuspecting  tranquility  of 
the  country  with  a  more  terrible  destruction.* 

O  masters  !  treat  your  slaves,  while  slavery  is  suffered 
to  exist,  with  all  the  mildness  of  which  the  necessary  state 
of  servitude  admits ;  attach  them  to  you  by  love ;  imbue 

*  The  servile  war  at  Rome  was  one  of  the  most  dangerous 
which  ever  agitated  that  republic  ;  and  we  have  lately  seen  with 
horror  the  convulsions  of  St.  Domingo. 


179 

their  minds  in  earliest  youth  with  the  principles  of  good 
morals  ;  admit  freely  to  instruct  them  those  teachers  of 
religion,  of  whatever  denomination,  who  will  take  pains  to 
adapt  religious  ideas  to  their  measure  of  understanding, 
and  impress  them  on  their  hearts.  The  more  01  religious 
principle  and  feeling  can  he  introduced  among  them,  the 
greater  security  will  you  have  for  your  own  safety,  and 
the  safety  of  the  republic. 


ISO 


LECTURE  XXII. 


OF  POLITICAL  PHILOSOPHY,  OR  THE  PHILOSOPHY    OF 
LEGISLATION. 

CONTENTS. 

Of  jurisprudence. — Of  rights,  and  their  divisions. —  Of 
property,  and  the  different  ways  in  which  it  is  lawfully 
acquired. Of  property  in  land — of  separate  and  ex- 
clusive property — the  benefits  of  this  institution — the 
jirinciples  which  govern  the  original  distribution  of 
property — and  its  transfer — of  occupancy — of  labor — • 
of  the  inviolability  of  properly. 

HATING,  hitherto,  taken  a  survey  of  the  constituent 
principles  of  human  nature,  of  the  general  heads  of 
morals,  of  natural  theology,  and  of  economies,  I  proceed 
to  present  to  you  a  concise  view  of  the  rights,  privileges, 
and  duties  of  men  in  a  state  of  civil  society;  together 
with  the  principles  on  which  civil  society  is  constituted, 
and  governs  its  operations.  Plato  appears  to  have  heen 
the  first  who  thus  connected  the  doctrines  of  civil  policy 
with  those  of  morals.  But,  since  his  time,  the  example 
has  heen  followed  hy  many  eminent  writers  ,•  especially 
among  the  philosophers  of  modern  times.  In  republican 
governments  it  is  peculiarly  incumbent  on  those  who 


181 

conduct  the  liberal  pursuits  of  youth,  to  introduce  them 
to  some  acquaintance  with  the  general  principles  of  civil 
policy.  Talents  and  knowledge  ought  always  to  he  held 
at  the  requisition  of  the  republic  ;  and  the  more  the  prin- 
ciples of  true  political  science  are  diffused  by  men  of 
letters  through  the  body  of  the  state,  the  more  favorable 
prospects  will  be  opened  to  her  for  the  stability  of  her 
government,  and  the  wisdom  of  its  administration.  It  is 
not  expected  that,  in  such  an  elementary  course  of  studies 
as  is  here  pursued,  in  which  the  first  principles  of  so 
many  branches  of  knowledge  are  to  be  acquired  in  the 
short  period  of  two  or  three  years,  you  should  have  it  in 
your  power  to  cultivate  an  extensive  acquaintance  with 
the  practical  doctrines  either  of  jurisprudence,  or  of  civil 
policy.  All  that  we  can  aim  at,  in  this  limited  time,  is  to 
propose  to  you  such  simple  and  general  principles,  and 
open  to  your  minds  such  a  regular  and  comprehensive, 
but  brief  view  of  the  whole  science,  as  will  enable  you 
hereatter  to  pursue  it  to  such  extent  as  either  your  in- 
clination may  prompt,  or  your  public  duties  may  require. 

This  science,  which  may  be  denominated  political  phi- 
losophy, or  the  philosophy  of  legislation,  is  naturally  di- 
vided into  three  parts,  consisting,  first,  of  the  rules  which 
regulate  the  conduct  of  men  towards  one  another  in  a 
state  of  society,  and  the  means  of  enforcing  those  rules. 
Secondly-— the  rules,  or  principles  which  give  the  form 


182 

to  the  society  itself,  and  which  direct  its  operations.— 
And  lastly, — the  rules  which  should  govern  the  conduct 
of  independent  societies,  or  states  towards  one  another.— 
The  first,  compose  the  science  of  jurisprudence. — The 
second,  that  of  politics. — And  the  third,  that  of  public 
law,  or  the  laiv  of  nature  and  nations. 

OF  JURISPRUDENCE. 

The  rules  of  conduct  of  man  towards  man  in  a  state  of 
civil  society  must  he  founded  on  their  rights,  either  de- 
rived from  nature,  or  resulting  from  the  will  of  the  so- 
ciety— Jurisprudence,  therefore,  consists  of  two  parts, — 
of  which  the  first  ascertains  and  defines  the  rights  of 
men ;  the  second  relates  to  the  legal  and  authorized 
means  of  defending  those  rights. 

OF  RIGHTS. 

A  right  may  be  defined  to  he  the  just  claim  which  any 
person  possesses  to  the  free  use,  and  full  enjoyment  of  a 
thing,  which  no  other  person  can  justly  use,  possess,  or 
change  without  his  consent ;  and  which  may  be  main- 
tained, or  defended  by  force,  or  by  any  other  means  which 
may  be,  at  once,  necessary  and  effectual  for  the  purpose. 
— Bight  is  a  term  often  used  to  express  a  property  of  ac- 
tions, as  well  as  a  privilege  belonging  to  persons.  Thus 
we  say  a  magistrate  has  acted  right  in  punishing  an  of- 
fender :  in  which  application  it  implies  the  conformity  of 


183 

an  action  to  some  moral  rule  of  conduct,  or  to  the  obliga- 
tion of  some  duty. 

Obligation  is  the  correspondent  term  to  right,  and  ex- 
presses the  principle,  or  ground  of  some  duty  to  be  ful- 
filled towards  those  who  have  a  right  to  claim  it.  When 
any  man  is  possessed  of  rights  either  natural,  or  acquired, 
it  becomes  the  duty  of  other  men,  or,  they  are  under  ob- 
ligation, to  respect  them.  Whence,  ascertaining  the 
rights  of  mankind,  whether  resulting  from  natural  law, 
or  from  the  compacts  of  society,  is  a  necessary  founda- 
tion for  prescribing  to  citizens  the  rules  of  their  conduct 
respectively  to  one  another. 

Wrong,  is  the  violation  of  any  right.  And  the  law  of 
defence,  which  is  intended  for  the  security  of  the  citizens 
in  the  tranquil  possession  of  the  blessings  of  society,  re- 
lates to  the  means  of  preventing, — repelling, — or  repair- 
ing wrongs. 

DIVISION  OF  RIGHTS. 

Bights  may  be  divided  in  different  ways  ;  according  to 
their  degree,-  heir  objects, — or  their  sources.  In  the 
first  view,  i  ..ey  are  perfect,  or  imperfect ;  alienable,  or 
unalienable.  In  the  second,  they  are  personal  or  real. 
And,  in  the  third,  natural,  or  adventitious. 

Perfect  rights  are  those  which,  being  clear  and  deter- 
minate, a  man  may  employ  force  to  obtain,  or  defend,  ei- 


18* 

tker  by  himself,  if  the  violence  is  sudden  and  urgent,  and 
redress  cannot  await  the  tardy  decisions  of  a  judicial 
process,  or,  in  ordinary  cases,  by  the  tribunals,  and  the 
executive  power  of  his  country ;  which  society,  for  all 
common  and  general  purposes  of  defence,  has  substituted 
in  the  room  of  personal  force, — such  are  the  right  to  life, 
the  right  to  personal  safety,  the  right  to  property. 

Imperfect  rights  respect  objects  to  which  a  man  has  a 
just  claim  ;  but  the  fulfilment  of  them  society  seldom  at- 
tempts to  enforce  by  any  law.  Rights  of  this  degree  are, 
in  general,  strongly  founded  in  the  principles  of  nature, 
and  the  dictates  of  religion  ;  but  they  are  so  indefinite  in 
their  limits,  that  they  can  rarely  be  marked  with  suffi- 
cient precision  in  human  laws  to  be  submitted  to  the  de- 
cision of  civil  tribunals.  They  are,  therefore,  left  to  the 
laws  of  religion,  and  conscience,  which  alone  can  pre- 
scribe, in  their  full  extent,  the  duties  resulting  from 
them,  and  add  to  them  an  eiTeetual  sanction.  Such  are 
the  rights  which  a  parent  possesses  to  dutiful  submission 
from  his  children,  and  a  grateful  return  for  the  pains  and 
affection  bestowed  upon  them  in  early  life  ;  and  to  provision 
and  protection  if  it  should  become  necessary,  in  his  old 
age.  Such,  reciprocally,  is  the  right  of  children  from 
their  parents,  to  nourishment,  assistance,  and  an  educa- 
tion adapted  to  their  station  in  society.  The  poor,  who  are 
unable  to  provide  tor  their  own  subsistence,  have  a  right 


185 

of  the  same  kind,  by  the  law  of  charity,  to  necessary  as- 
sistance, and  comfort,  from  those  who  have  it  in  their 
power  to  aid  them.  To  this  class,  likewise,  is  referred 
the  right  which  a  worthy  candidate  for  any  office  of  civil 
trust,  possesses  to  the  suffrages  of  his  fellow  citizens. 
These  rights  may  exist,  foro  conscientice ;  and,  in  the 
general  opinion,  may  be  as  clear  as  they  are  important ; 
yet,  wanting  that  precision  and  determinateness  which  is 
required  in  the  objects  of  all  laws  under  a  free  govern- 
ment, if  they  are  withheld,  compulsion  can  seldom  be  ap- 
plied to  enforce  them.  This  is  the  meaning  of  imperfect 
rights  on  the  one  hand,  and  on  the  other,  of  imperfect  and 
corresponding  obligations  ;  not  that  they  are  less  binding 
on  the  conscience,  or  in  the  view  of  the  Supreme  Judge 
of  the  universe  ;  but  that  they  are  not  the  objects  of  com- 
pulsory enforcement  at  human  tribunals. — Hence  civil 
laws  embrace  in  their  consideration,  only  the  perfect 
rights  of  men  in  society  ;  the  laws  of  morality  extend  to 
both. 

Another  division  of  rights  is  into  alienable,  and  unalien- 
able.— The  former  embrace  such  as  by  their  transferable 
nature  can,  and  by  their  legal  tenure  may  lawfully  be 
transferred  to  others.    Such  are  the  rights  which  men 

hold  in  most  kinds  of  property.   But  if  the  property  be 

# 
limited  by  contract,  or  conveyance  to  the  person  occupy- 
vol,  ii,  a  a 


186 

ingit,  or  be  made  to  depend  on  any  personal  condition  to 
be  fulfilled  by  him  alone,  it  then  becomes  unalienable. 
—The  latter  consist  of  those  rights,  the  possession,  or  ex- 
ercise of  which  cannot,  by  their  nature  and  tenure,  or  by 
the  laws  of  morality  ought  not,  to  be  transferred  to  others. 
Of  the  former  kind,  is  the  right  of  a  magistrate  in  his 
office,  the  right  of  opinion  in  religion ;  of  the  latter  is 
the  right  of  a  man  over  his  own  life,  the  right  over  any 
trust  committed  to  a  person  in  behalf  of  another,  the  rights 
of  a  husband,  or  a  father.  Some  respectable  writers,  with 
a  warm,  and  perhaps  precipitate  zeal,  have  ranked  the 
rights  of  civil  liberty  in  the  class  of  those  that  are  un- 
alienable. And,  it  certainly  argues  a  degenerate  spirit  in 
a  freeman  to  be  willing  without  extreme  necessity,  to 
abandon  the  privileges  of  civil  liberty ;  and  the  treachery 
of  a  few  who  have  been  base  enough  to  sell  their  own 
freedom,  involving,  at  the  same  time,  the  honor  and  hap- 
piness of  multitudes  whom  they  had  no  right  to  injure, 
has  always  received,  as  it  deserved,  the  deepest  detesta- 
tion ;  yet  cases  may  be  imagined,  as  that  of  the  people  of 
Sweden  or  Denmark,  after  they  found  it  impossible  to 
reform  the.evils  of  their  aristocratic  government,  in  which 
they  were  justified  in  resigning  their  liberties  into  the 
hands  of  their  sovereign,  in  order  to  deliver  themselves 
from  the  more  atrocious  despotism  of  a  multitude  of  petty 
lords. 


1S7 

Rights,  in  the  next  plaee,  may  be  divided,  as  their  ob- 
jects vary,  into  personal  and  real. 

Personal  rights  relate  to  such  things  as  constitute  the 
nature  and  well-being  of  persons,  which,  in  the  eye  of  the 
civil  law,  are  two-fold, — natural  and  artificial.  By  the 
former  are  meant  individual  men  ;  and  by  the  latter,  cor- 
porations, or  bodies-politic.  The  personal  rights  of  indi- 
viduals respect  the  safety,  preservation,  and  proper  use  of 
their  powers  and  faculties,  either  bodily  or  mental.  The 
rights  of  corporations  respect  the  integrity,  and  preser- 
vation of  their  members,  their  forms,  and  their  laws.  If 
any  other  person,  or  body,  possessed  the  prerogative  of 
disqualifying  the  individual  members  of  such  a  chartered 
institution,  or  interfering  with  their  forms  of  proceeding, 
or  the  laws  established  for  conducting  their  own  affairs, 
it  would  destroy,  with  their  existence,  all  the  beneficial 
purposes  of  their  creation. 

Real  rights  relate  to  such  things  as  constitute  the  external 
state  of  a  person,  the  use  and  direction  of  which  no  other 
person  can  justly  exercise,  or  claim.  They  may  be  refer- 
red to  two  principal  heads,  property,  and  power  ;  and  are 
the  same  with  those  which  will,  hereafter,  be  enumerated 
under  the  class  of  adventitious  rights. 

Some  writers  add  to  the  preceding  heads,  the  light  of 
possession,  when  laid  upon  a  subject  not  antecedently  ap- 


188 

propriated.  Butpossession  implies  merely  a  transient  pro- 
perty arising  from  actual  occupancy  and  use,  and  contin- 
uing no  longer  than  that  use  exists.  Thus  in  a  common, 
a  man,  by  virtue  of  possession  enjoys  a  certain  property 
in  that  portion  of  it  on  which  he  is  actually  pasturing  his 
cattle.  A  fisherman  enjoys  the  right  of  possession  over 
that  part  of  a  river,  or  lake  which  he  occupies  with  his 
seine.  The  same  kind  of  property  barbarian  and  savage 
tribes  enjoy  in  those  extensive  and  uncultivated  territories 
which  they  continually  use  for  their  subsistence  by  hunt- 
ing, or  the  actual  range  of  their  flocks. 

The  last  division  of  rights  which  we  make  is,  accord- 
ing to  their  sources,  into  the  natural  and  adventitious,  or, 
those  which  result  from  the  constitution  of  human  nature, 
and  those  Which  accrue  from  the  necessities  and  conven- 
tions of  society.  Most  of  the  natural  rights  of  man  are  the 
same  with  those  which  have  already  been  mentioned  un- 
der the  title  of  personal,  such  as  a  right  to  life,  and  lib- 
erty ;  to  a  free  use  of  a  man's  own  powers,  and  talents  ; 
to  a  participation  of  the  common  benefits  of  air  and  water  5 
and  to  the  entire  control  over  the  products  of  his  own  la- 
bor or  skill.  A  parent  has,  likewise,  a  natural  right  of 
authority  over  his  infant  child.  All  other  examples  of 
power,  and  of  property,  belong  to  the  class  of  adventi- 
tious rights.    - 


189 

Adventitious  rights  are  such  as,  not  belonging  origi- 
nally and  universally  to  man,  from  the  constitution  of  his 
nature,  accrue  to  him  only  in  consequence  of  the  conven- 
tions of  society.  They  refer  to  whatever  may  be  conferred 
by  the  will  of  others,  or  may  be  acquired  by  compact 
with  them ;  and  are  comprehended  under  the  heads  of 
property,  or  the  right  to  permanent  and  exclusive  use  and 
enjoyment ;  and  poiver,  or  the  right  to  command  the  obe- 
dience, and  control  the  actions  of  other  men. 

It  is  an  object  of  importance  in  the  science  of  jurispru- 
dence to  point  out  the  means  by  which  men  may  justly  ac- 
quire the  rights  either  of  property,  or  of  power. 

OF  PROPERTY. 

Since  the  earth,  and  its  natural  products,  must  have 
been  originally  common,  and  all  men  had  an  equal  right 
to  improve  the  soil,  or  to  gather  its  fruits,  for  their  own 
benefit,  it  becomes  amoral,  and  a  civil  question  of  some 
interest,  whence  arises  the  right  of  parcelling  out  the 
surface  into  separate  and  exclusive  property  ?  And  how 
far  may  that  right  justly  be  extended  ? — It  is  contended 
by  many  respectable  writers,  among  others,  by  Mr  Locke. 
that,  as  nothing  can  be  more  peculiarly  a  man's  own  than 
the  exertions  of  his  own  faculties,  whether  of  ingenuity 
or  of  labor,  when  these  exertions  are  employed  upon  a 
subject  originally  common,  tkey  equitably  remove  it  out 


190 

of  that  primitive  and  unappropriated  state,  and  constitute 
a  property  in  the  individual  exclusive  and  indefeasible. 
And  the  property  arising  from  this  cause,  is  the  more 
entire  and  complete  in  proportion  as  the  labor  and  skill 
bestowed  upon  the  subject  form  the  greater  part  of  its 
value  in  its  new  state  :  which  is  the  case  of  cultivated 
soil,  compared  with  natural  rude  and  unappropriated 
forest  or  marsh.  This  reasoning  appears  sound  and  con- 
clusive as  far  as  the  labor  and  ingenuity  of  man  is  active- 
ly employed,  and  as  long  as  it  continues  to  be  exerted. 
But  as  it  can  extend  only  to  a  very  narrow  compass,  and 
to  a  very  short  duration,  it  does  not  seem  to  afford  a  suf- 
ficient foundation  for  the  rights  of  property  in  land  to  the 
extent  in  which  they  actually  exist.  We  must  search  a 
little  deeper,  therefore,  for  the  right  of  parcelling  out  the 
surface  of  the  earth  among  separate  and  exclusive  pro» 
prietors.  There  can  be  little  doubt,  from  the  wisdom  and 
intelligence  displayed  in  the  general  structure  of  the 
world,  and  from  the  peculiar  attributes  of  human  nature, 
that  this  globe  was  formed  for  the  use  and  happiness  of 
man ;  and  was  committed  to  the  direction  and  control  of 
his  reason  to  be  disposed  of  in  that  manner  which  seems 
to  him  best  adapted  for  promoting  its  utility,  and  ren- 
dering it  a  commodious  and  comfortable  habitation  for 
the  greatest  numbers  of  the  human  race.  This  general 
and  obvious  principle  involves  the  right  of  distributing  it 


191 

in  separate  property,  under  some  form  of  division,  as 
being  infinitely  better  adapted  for  these  ends  than  its 
original  condition  of  community.  For  it  may  be  received 
as  a  certain  maxim,  that  the  worst  state  in  which  the 
earth  can  exist,  and  the  farthest  removed  from  the  ap- 
parent design  of  the  Author  of  nature,  is  that  of  a  com- 
mon. It  prevents  the  improvement  of  the  soil,  the  multi- 
plication of  mankind,  and  the  introduction  and  growth  of 
almost  all  the  arts  which  contribute  to  the  accommoda- 
tion of  the  life  of  man,  and  of  the  principles  of  science 
which  expand  the  sphere  of  his  knowledge. 

The  right  of  establishing  separate  and  exclusive  pro- 
perty, especially  in  land,  must  result  from  the  utility  of 
the  institution.  It  contributes  a  thousand  fold  to  increase 
the  products  of  the  soil  in  climates  of  moderate  fertility 
and  temperature,  and,  in  the  same  proportion,  to  augment 
the  numbers  of  the  human  species.  All  industry,  either 
in  collecting  and  nourishing  herds  of  useful  animals,  or 
in  cultivating  the  earth,  must  cease,  when  it  is  known 
that  others  may  enter  at  pleasure,  and  enjoy  in  indolence 
the  produce  of  your  labors.  It  is  only  when  property  is 
certain,  and  its  fruits  are  rendered  secure  to  the  proprie- 
tor, that  he  is  encouraged,  by  every  exertion,  to  improve 
its  value  and  to  multiply  its  produce.  And  the  multiplica- 
tion of  the  means  of  living  contributes  to  multiply  life 
itself.   Thus  the  earth  is  made  more  effectually  to  con 


192 

duce  to  the  ends  of  its  original  destination.  Without  the 
institution  of  property  hardly  ever  should  we  see  even  its 
natural  fruits  permitted  to  arrive  at  maturity.  Agreeahly 
to  these  reflections,  wherever  the  primitive  community 
of  the  soil,  is  suffered  to  subsist,  as  among  the  aboriginal 
inhabitants  of  America,  the  population  is  necessarily  ex- 
tremely sparse,  and  the  beasts  are  found  to  multiply  infi- 
nitely faster  than  the  men. 

The  establishment  of  separate  property,  promotes,  also, 
the  tranquility  of  society  ,•  and  tends  to  the  introduction 
and  cultivation  of  all  the  useful  and  ornamental  arts 
which  contribute  so  greatly  to  the  accommodation  and 
embellishment  of  human  life. 

From  every  view,  therefore,  which  we  can  take  of  the 
origin  of  property,  and  the  grounds  of  its  separate  and 
exclusive  appropriation,  it  is  justified  equally  by  the  evi- 
dent intention  of  divine  providence  ,•  and  by  its  beneficial 
influence  on  the  order,  improvement,  and  happiness  of 
human  society. 

OF  THE  INDIVIDUAL  EIGHT  OF  PROPERTY,  OR  THE  TITLE 
OF  EACH  MAN  TO  HIS  ESTATE  ORIGINALLY. 

Of  the  general  right  of  mankind  to  appropriate  and  di- 
vide the  surface  of  the  earth  among  them  for  the  purpo- 
ses of  subsistence,  there  can  be  no  doubt :  but  the  question 


193 

arises,  whence  is  derived  the  title  of  each  man  to  his  par- 
ticular share  in  the  division  ?  The  earth,  in  its  original 
state,  like  the  ocean,  was  common.  Each  man  had  a  right 
to  use  it,  in  order  to  procure  from  it  his  own  subsistence  ; 
but  natural  justice  required  that  this  right  should  be  ex- 
ercised so  as  not  to  interfere  with  the  equal  rights  of 
others.  Where  every  man  was  his  own  judge,  and  acted 
on  his  own  impulse,  this  would  necessarily  be  extremely 
difficult,  and  would  afford  occasion  to  innumerable  contro- 
versies concerning  the  limits  of  their  respective  rights  of 
range,  and  the  priority  of  occupation  of  particular  dis- 
tricts. After  the  inhabitants,  therefore,  should  have  be- 
come too  numerous  on  a  certain  territory,  to  employ  it 
according  to  their  primitive  and  common  rights  without 
frequent  and  dangerous  collisions,  it  would  naturally  oc- 
cur to  the  prudent  among  them,  as  the  most  obvious  means 
of  remedying  these  evils,  to  agree  to  throw  their  general 
rights  into  a  common  fund  to  be  divided  among  them  in- 
dividually, or  by  families,  according  to  some  principles  of 
convenience.  This  important  act  might  have  been  execu- 
ted by  common  consent,  or  regulated  according  to  the  will 
of  those  who  should  have  been  vested  by  the  general  as^ 
sembly  with  supreme  authority  for  this  purpose.  In  either 
case,  that  division  of  the  land  adopted  by  them,  must  have 
become  the  connecting  principle  of  their  government,  and 

formed  the  basis  of  their  civil  constitution.    The  constitu- 
vox.  ii.  b  b 


194 

tion,  therefore,  or  fundamental  law  of  the  nation,  is  the 
sole  foundation  of  the  exclusive  rights  of  property  to  the 
citizens,  in  their  separate  bounded  portions  of  the  soil. 
Imagined  convenience,  and  the  benefit  of  society,  is  com- 
monly the  original  rule  or  measure  which  governs  the 
law  of  the  division,  And  the  precise,  and  definite  rights 
derived,  in  this  manner,  from  the  will  of  the  society,  or 
of  the  sovereigu,  in  whom  the  society  has  vested  all  its 
powers,  are  substituted  in  the  room  of  those  primitive  and 
common  rights  derived  from  nature  which  are  only  gen- 
eral and  indefinite.  Hence  the  tenure  of  landed  property 
is  various  in  different  countries,  accoi-ding  to  the  ideas  of 
the  people,  or  of  their  legislators.  But,  whatever  the  par- 
tition of  the  soil  may  have  originally  been,  it  usually  be- 
comes greatly  changed  in  the  course  of  time,  in  conse- 
quence of  devises,  contracts,  and  the  infinite  divisions  and 
transfers  of  property  which  are  continually  taking  place 
in  society. 

OF  THE  PRINCIPLES  WHICH  GOVERN  THE  DISTRIBUTION 
AND  TRANSFER  OF  PROPERTY. 

In  the  original  distribution  of  property  there  are  some 
principles  which  usually  govern  the  opinions  of  mankind 
besides  the  mere  will  of  society,  and  which  serve  to  di- 
rect that  will.  The  chief  of  these  are  prior  occupation, 
or  labor  primarily  bestowed  on  any  unappropriated  sub- 


195 

ject.  And,  in  the  progress  of  society,  the  most  common 
grounds  of  the  transfer  of  property  are  devise,  gift,  or  bar- 
gain and  sale,  all  of  which  are  usually  considered  under 
the  general  head  of  contract.  To  these  means  of  acquir- 
ing property  some  writers  have,  perhaps  incautiously, 
added  forfeiture  ;  because  when  an  injury  is  committed, 
the  guilty  person  is  bound  to  make  reparation,  and  there* 
by  forfeits,  or  transfers  to  the  injured  what  had  before 
been  his  right.  But  this  is  only  substituting  one  species 
of  property  in  the  room  of  another  :  unless  we  basely  con- 
sider personal  injuries,  or  wounded  reputation,  in  some 
instances  as  subjects  of  barter,  or  sale.  Forfeiture  is,  be- 
sides, so  limited  in  its  effect  that  hardly  can  it  be  justly 
regarded  as  one  of  the  sources  of  property. 

OF  OCCr/PAXCY. 

The  right  of  occupancy  can  take  place  with  regard  to 
such  things  only  as  before  were  common,  and  unappro- 
priated, such  as  the  air,  the  sea,  or  lands  which  have  not 
yet  been  parcelled  out  among  separate  owners  by  express, 
or  implied  compact.  In  subjects  of  this  nature,  each  man 
has  a  property  in  that  portion  which  he  holds  in  actual 
occupation  ;  and  no  man  can,  without  injury,  deprive  him 
of  the  free  and  unmolested  use  of  it.  But  as  it  is  impos- 
sible for  one  person  to  occupy  the  whole  atmosphere, 
ocean,  or  forest,  and  as  others  possess  equal  rights  with, 


196 

himself,  his  privilege,  or  title  of  property  becomes  limi- 
ted by  natural  justice,  to  what  he  is  at  present  employing 
in  actual  use.  But  the  laws  of  almost  all  governments, 
fromteome  considerations  of  public  utility,  have  concur- 
red in  the  general  principle  of  extending  the  rights  of 
prior  occupation  beyond  immediate  possession  and  use,  to 
what  will  be  convenient  for  the  purposes  of  society. 

The  principle  of  convenience  has  likewise  been  ?pplied 
by  independent  nations,  sometimes  by  implicit  agreement, 
and  sometimes  by  explicit  compact,  to  regulate  their  res- 
pective rights  of  use,  or  property,  in  seas,  rivers,  bays, 
or  certain  districts  of  the  ocean,  and  in  newly  discovered 
lands ;  which,  without  such  convention,  must  have  been 
subjected  to  the  general  principle,  limiting  rights  to  ac- 
tual occupancy,  and  possession. 

OF  LABOR. 

Labor  forms  another,  and  still  juster  title  to  property. 
By  it  is  intended  any  exertion  of  our  talents,  or  any  effort 
of  industry,  corporeal  or  mental,  by  which  a  thing  is  dis- 
covered that  was  not  known  before, — fabricated  that  did 
not  exist  before, — or  receives,  from  some  change  in  its 
form,  an  augmented  value.  The  title  acquired  by  this 
means  is  a  necessary  result  of  the  natural  right  which 
cxery  man  possesses  to  the  use  of  his  own  faculties,  and 
the  enjoyment  of  their  fruits.   The  productions  of  a  man's 


197 

ingenuity  and  skill  are  his  property,  which  he  may  em- 
ploy, or  dispose  of  for  his  own  benefit.  The  work  of  his 
hands  forms  a  title  to  property,  if  it  is  employed  on  a 
subject  before  unappropriated,  or  on  an  appropriated  sub- 
ject, with  the  consent  of  the  owner.  But  if,  without  such 
consent,  any  labor  he  added  to  a  subject  belonging  to 
another,  it  is  lost  to  the  laborer,  inasmuch  as  it  ought 
not  to  change  the  original  propriety  of  a  thing  which  has 
not  been  alienated.  But,  if  it  be  of  such  a  nature  that  it 
may  be  separated  from  the  original  subject,  the  author  of 
the  work  has  a  right  to  remove  it,  and  hold  it  for  his  own 
use.  But,  if  no  separation  can  be  made  without  injury  to 
the  subject,  the  original  proprietor  must  be  suffered  to  en- 
joy the  benefit  of  the  whole.  Any  change  in  this  rule  can 
only  be  made  with  the  consent  of  the  proprietor. 

Property  which  does  not  accrue  from  one  or  the  other 
of  the  sources  just  mentioned,  and  is  not  the  effect  of  de- 
vise or  gift,  is  the  consequence  of  contract  or  convention, 
the  forms  of  which  are  generally  prescribed  in  the  laws  of 
society. — It  will  be  considered  in  the  next  lecture. 

All  property,  except  that  resulting  from  prior  occupa- 
tion of  unappropriated  subjects,  may  be  considered  as 
founded  in  labor  ;  inasmuch  as  it  is  labor  which  gives  the 
principal  value  to  all  things.  Property  derived  from  con- 
tract is  only  the  exchange  of  one  species  of  labor  for 


198 

another ;  and  that  which  accrues  from  devise,  or  gift,  is 
but  the  transfer,  without  an  equivalent,  of  things  which 
have  been  rendered  valuable  by  the  labor  of  others. 

One  of  the  first  principles  in  the  establishment  of  sepa- 
rate and  individual  property,  was  its  inviolability  ;  which 
implies  that  the  portion  of  each  citizen  should  be  sacred, 
and  protected  by  the  laws  from  the  intrusion  of  every 
other  person,  without  the  consent  of  the  proprietor.  Yet, 
in  this  distribution,  every  society  reserves  to  itself  certain 
rights  for  the  common  good,  which  seem  to  limit  this  in- 
violability ;  but  only  to  enhance  the  value,  and  increase 
the  security  of  that  which  remains.  It  retains  the  sove- 
reign prerogative  of  laying  out  roads,  of  cutting  canals,  of 
establishing  ferries  and  bridges  across  rivers  for  the  pub- 
lie  interest,  and  convenience.  And  in  performing  these 
acts,  it  may,  by  its  sole  authority,  take  the  necessary  pro- 
portion of  the  property  of  any  private  citizens,  always, 
however,  making  reasonable  compensation  for  what  it 
shall  so  employ.  This  reservation  of  public  right  is  al- 
ways presumed  in  the  distribution  of  the  territory  in  pri- 
vate property.  And,  upon  the  most  equitable  grounds, 
for,  as  the  property  of  individuals  is  rendered  secure  and 
valuable  only  by  the  will  and  power  of  the  public,  the 
public  has  an  undoubted  right  to  derive  an  advantage 
from  the  protection  it  extends.  It  is  usual  also  for  the 
public  to  assert  a  property  in  certain  minerals,  and  medi- 


199 

cinal  springs.  On  the  same  principle,  it  may  claim  a  pro- 
visional right  to  useful  inventions,  or  discoveries  for  the 
public  benefit,  paying  to  the  original  inventor,  or  discover- 
er an  adequate  and  liberal  reward.  For,  although  it  be 
acknowleged  that  he  has  a  natural  right  to  the  full  use, 
and  fruits  of  his  own  talents,  or  good  fortune,'  yet,  it  is 
the  power,  and  wealth  of  society  which  can  render  them 
of  any  value  to  him  j  and  it  merits  this  acknowlegement. 

Another  exception  to  the  inviolability  of  property  may 
deserve  to  be  mentioned,  although  it  be  in  itself  of  small 
importance,  from  the  rarity  of  the  occasions  on  which 
it  is  called  into  exercise.  It  is  well  known  to  jurists  under 
the  head  of  the  rights  of  necessity.  They  are  such  as 
from  the  extreme  urgency  of  their  claims  cannot  be  de- 
layed, yet,  from  the  ambiguity  of  their  circumstances 
cannot  easily  be  designated  with  precision  in  any  general 
law.  It  is  necessary  therefore  that  they  be  left  to  each 
man's  reason  and  conscience  to  direct  his  conduct  at  the 
moment  of  action  ;  but,  as  they  must  afterwards  be  judged 
of  at  the  tribunal  of  the  public,  they  ought  to  be  justified 
by  the  palpable  extremity  of  the  case.  A  man  may  put 
another,  who  assails  his  life,  to  death  on  the  spot,  with- 
out waiting  the  decision  of  a  tribunal  which  would  come 
too  late  for  his  protection.  A  man  ready  to  starve  with 
hunger  or  to  perish  with  cold,  may  justifiably  take  the 
first  food,  clothing  or  shelter  he  can  find.   A  house,  the 


200 

demolition  of  which  would  stop  the  progress  of  adestruc* 
live  flame,  may,  on  the  same  ground,  be  torn  down.  As 
society  was  instituted  for  the  greatest  common  benefit, 
individual  interest  in  such  eases,  must  give  way  to  a 
greater  good.  In  examples  of  the  nature  of  the  last,  how- 
ever, restitution  to  the  particular  sufferer  ought,  as  far 
as  possible,  to  be  made  by  the  community.  But  this  res- 
titution cannot  be  required  to  extend  to  the  full  value  of 
the  property  destroyed  $  only  to  its  value  estimated  by  a 
liberal  appraisement  in  the  imminent  hazard  in  which  it 
stood. 

Such  are  the  principles  on  which  the  distribution  of 
property  has  been  originally  made  in  society.  Its  trans- 
fer, or  exchange  among  citizens  by  contract,  which  in 
the  end,  so  greatly  varies  its  relations,  will  be  considered 
in  the  following  lecture. 


201 


LECTURE  XXIII, 


OF    CONTRACT. 


The  nature  of  a  contract,  and  the  principles  that  should 
govern  its  formation — Of  the  distinction  of  contracts 
—Of  testamentary  devise — Of  exceptions  to  contracts. 
—The  obligation  of  truth  considered  under  the  head  of 
contracts. — Of  the  forms  necessary  to  authenticate  con- 
tracts, and  render  them  complete  in  law.— .Of  subscrip- 
tion— of  seals — of  oaths — of  vows, — Of  the  rights  of 
command. — Of  police. 

I  HAVE  already  considered  prior  occupation,  and  per- 
sonal labor,  by  which  last  is  meant  any  exertion  of  our  own 
talents,  bodily  or  mental,  as  means  of  acquiring  property. 
I  come  now  to  place  before  you  the  nature  and  conditions 
of  contracts,  which  are  the  most  ample  source  of  the  ac- 
quisition, transfer,  and  exchanges  of  property  in  society, 
and  the  subject  of  the  greatest  portion  of  her  civil  code. 
— A  contract  is  a  promise  explicitly  made  either  by 
words,  or  by  signs,  calculated  and  designed  to  excite  an 
expectation  of  the  performance  of  some  service,  or  the 
transfer  of  some  rights.  An  expectation  thus  excited, 
considering  the  necessity  there  is  for  this  mutual  confi- 
dence in  society,  reasonably  creates  a  reliance  on  its  ful- 

toi.  ii.  e  c 


202 

filment  as  forming  part  of  the  expectant's  estate.  A  frau- 
dulent failure  to  fulfil  it,  therefore,  is  equivalent  to  pur- 
loining such  a  portion  of  his  property. 

A  promise,  when  clearly  and  distinctly  made,  although 
it  may  not  he  attended  with  all  the  civil  forms  required 
by  the  laws  of  the  state,  is,  however,  equally  obligatory  on 
the  conscience  of  a  good  man  with  a  formal  contract :  but 
when  invested  with  its  legal  forms,  it  becomes  a  ground 
of  compulsory  obligation.  It  is  then  converted  into  a  spe- 
cies of  property;  and  the  violation  of  it  forms  an  injury 
which  is  justly  punishable  by  the  civil  magistrate. 

It  is  of  importance  that,  on  this  subject,  whether  we 
contemplate  it  as  moralists,  or  civilians,  we  frame  precise 
and  equitable  principles  for  its  regulation. 

1.  In  the  first  place,  contracts  should  regard  only  such 
things  as  are  both  possible,  and  lawful. — If  the  object  of 
the  contract  is,  at  the  time,  impossible,  and  the  impossi- 
bility be  known  to  both  parties,  it  is  an  act  of  madness.  If 
it  be  known  to  one  of  them  only,  who  may  derive  a  profit 
from  it,  it  is  an  act  of  fraud.  If  the  impossibility  arises 
after  the  contract  has  been  made,  and  not  from  any  fault 
of  the  parties,  that  agreement,  indeed,  is  void,  but  the  par- 
ties are  exempt  alike  from  the  charge  of  folly,  and  crime. 
If  the  contract  respects  an  object  which,  in  its  nature,  is 
unlawful,  it  is,  by  its  very  terms,  void ;  because  virtue, 


203 

duty,  honor,  truth,  are  prior  obligations  on  human  nature. 
If  the  unlawfulness  was  not  known  at  the  time  of  entering 
into  the  contract,  or  if  it  arose  afterwards,  as  in  the  en- 
gagement made  by  Herod  to  the  daughter  of  Herodias, 
the  knowlege  of  this  fact  immediately  dissolves  the  obli- 
gation. 

2.  To  render  a  contract  perfect  it  is  necessary  that 
there  be  not  only  a  promise  on  one  9ide,  but  acceptance  on 
the  other.  In  a  beneficent  contract  acceptance  may  com- 
monly be  presumed  ;  but  the  promise  should  be  explicitly 
made  to  the  beneficiary,  otherwise  it  is  no  more  than  a 
simple  resolution  in  the  mind  of  a  benefactor  which  can 
create  no  expectation,  and  may  be  retracted  at  pleasure. 
But  in  an  onerous  contract,  where  duties  are  to  be  per- 
formed on  each  side,  there  is  required  a  mutual  promise, 
and  mutual  acceptance. 

3.  A  contract  may  be  made  by  signs  as  well  as  by 
words,  if  the  signs  are  such  as  are  calculated,  and  evi- 
dently intended,  to  excite  the  expectation  of  another  that 
a  certain  service  shall  be  performed,  or  a  certain  benefit 
conferred,  such  as  raising  the  hand,  or  using  any  other 
appointed  signal  for  testifying  assent  to  the  declared  terms 
of  any  obligation. 

4*.  A  man  may  stipulate  in  his  own  person,  or  by  an 
agent  whom  he  has  regularly  authorized  to  act  for  him  in 


20* 

the  ease.  He  may  be  bound  by  the  act  of  a  servant  in 
sucb  affairs  as  servants  are  known  usually  to  transact  ; 
and,  especially,  in  such  affairs  as  he  has  been  known  re- 
peatedly to  commit  to  the  management  of  a  particular 
servant. 

5.  Custom,  when  generally  received  and  known,  may 
be  a  ground  of  obligation,  or  constitute  a  contract ;  al- 
though, not  formal  and  explicit,  nevertheless,  implied  and 
real.  A  parent,  for  example,  sending  a  child  to  a  place  of 
education,  by  that  act,  binds  himself  to  comply  with  all 
the  customary  regulations  of  the  institution  as  far  as  they 
immediately  concern  him.  A  great  part  of  our  conven- 
tions or  compacts  in  society  rest  merely  on  the  customs 
of  the  country. 

G.  As  there  may  frequently  exist  some  ambiguity  in 
the  expression  of  instruments  of  writing,  which  are  not 
drawn  with  a  particular  and  minute  attention,  to  the 
order  and  meaning  of  words,  it  is  an  important  and  ne- 
cessary rule,  in  the  interpretation  of  contracts,  to  give  to 
those  words  their  most  usual  signification,  in  common 
discourse  ;  or  that  signification  in  which  it  will  appear, 
from  the  hody  of  the  instrument,  and  from  other  concur- 
rent circumstances,  they  were  intended  to  be  used. 

7.  An  ultimate  rule  upon  the  subject  of  contracts  is 
derived  from  the  principle  which  constitutes  their  moral 


205 

obligation,  which  is  the  expectation  reasonably  excited 
by  them,  or  the  reliance  founded  upon  them ;  whence  it 
results,  that  no  contract  can  justly  be  supposed  to  exist, 
or  can  be  admitted  in  the  civil  laws  of  a  country  to  have 
any  force,  which  is  entered  into  with  a  person  insane,  or 
with  one  who  is  under  guardianship,  or  who,  from  any  cir- 
cumstances, cannot  be  supposed  to  have  a  free  will  of  his 
own,  or  an  independent  right  to  execute  its  stipulations. 
In  these  cases,  no  just  reliance  can  be  supposed  to  be  crea- 
ted, no  reasonable  expectation  raised. 

OF  THE  DISTINCTION  OF  CONTRACTS. 

After  the  general  rules  which  have  been  just  stated  on 
the  subject  of  contracts,  and  their  validity  in  law,  or  the 
equity  of  conscience,  I  proceed  briefly  to  point  out  their 
several  distinctions,  or  the  heads  under  which  they  may 
be  respectively  arranged. 

Contracts  taken  generally,  may  be  divided  into  abso- 
lute or  conditional,  single,  or  reciprocal. — Conditional 
contracts  are  such  as  make  the  execution  depend  upon 
some  condition  to  be  performed  by  the  person  who  is  to 
receive  the  benefit, — on  some  action  of  another, — onsome 
service  to  be  rendered, — or  some  fortuitous  event  which 
is  to  take  place  hereafter.  Absolute  contracts  are  such 
as  are  expressed  without  any  such  limitation  on  the  ful- 
filment of  their  stipulations — Reciprocal  contracts  imply 


206 

obligations  and  promises  of  services  to  be  performed,  or 
rights  to  be  transferred  on  each  side,  as  in  all  contracts  of 
bargain  and  sale. — Single  contracts,  on  the  other  hand, 
which  are  sometimes  called  gratuitous,  contain  an  obli- 
gation only  on  one  side,  of  some  favor  to  be  bestowed,  or 
some  right  to  be  transferred,  which  requires  simply  ac- 
ceptance on  the  part  of  the  obligee.  Such  is  the  deed  of 
gift  for  some  portion  of  his  real  property,  which  a  man 
may  bestow  on  his  friend,  or  devote  to  public,  or  charita- 
ble uses,  during  his  life. — Testamentary  devise,  however, 
is  the  principal  example  of  this  species  of  contract,  both 
on  account  of  the  frequency  of  its  occurrence,  and  the 
importance  of  the  objects  affected  by  it. — On  this  subject, 
a  question  has  been  proposed  by  civilians  of  no  small  im- 
portance in  the  philosophy  of  legislation ;  and  that  is, 
whether  the  power  which  a  citizen  enjoys  of  disposing  of 
his  property  by  testamentary  devise,  according  to  his 
pleasure,  be  a  right  resulting  from  the  law  of  nature,  or 
purely  an  adventitious  right  derived  from  the  will  of  so- 
ciety. Certain  it  is  that  the  right  of  constituting  wills  for 
the  transmission  and  distribution  of  a  man's  property 
after  his  death  was  first  introduced  into  Rome  by  the  de- 
eeraviral  law.  Tacitus  says  it  was  unknown  to  the  Ger- 
mans, and  from  the  period  of  the  conquest  in  England 
this  privilege  was  not  completely  enjoyed  by  a  great  part 
of  the  freeholders  of  that  nation  till  within  the  last  three 


207 

centuries.— The  following  principle  on  that  subject,  is 
universally  admitted,  that  the  personal  property  which 
any  man  has  acquired  by  his  own  industry,  or  fabricated 
by  his  own  labor  and  skill,  may,  conformably  to  the  law 
of  nature,  be  disposed  of  in  full  property  at  his  death,  in 
any  way  which  will  most  gratify  his  domestic  affections, 
or  friendly  attachments.  But,  because  the  distribution  of 
the  land  in  separate  propriety,  and  the  whole  system  of 
real  estate,  is  the  operation  only  of  social  law,  it  is  con- 
tended by  many  ingenious  writers  that  the  power  which 
creates  the  property  has  the  sole  right  to  direct  the  trans- 
mission of  it  after  the  demise  of  each  occupant.  The 
death  of  the  occupier,  they  suppose,  returns  the  soil  back 
to  its  primitive  state  of  community,  to  be  re-apportioned 
by  the  law  of  society.  Examples  of  the  exercise  of  this 
power  often  occur  in  the  ages  of  feudal  aristocracy  in 
Europe.  The  same  end  may  be  accomplished  by  insti- 
tuting a  certain  line  of  descent  for  landed  property,  inde- 
pendent of  the  particular  will  of  the  last  owner.  As  we 
see  exemplitied  in  the  absurd  rule  established  in  England 
for  the  succession  of  real  estate  in  the  ruder  ages  of  that 
kingdom  ',  and  which  can,  even  now,  be  corrected  only 
by  regular  testamentary  devise,  which,  within  a  short 
period,  has  been  introduced  for  the  remedy  of  this  evil.* 

*  Such  as  that  parents  can  in  no  case  inherit  even  if  the  es- 
tate should  be  lost  for  want  of  an  heir.   That  the  remotest  rela- 


208 

Another  and  more  humane  example  we  have  in  the  rule 
of  the  Roman  law  for  the  distribution  of  the  personal 
property  of  intestates. # 

Although  it  is  true  that  real  estate  rests  upon  a  differ- 
ent footing  from  personal  property,  and  is  wholly  the 
consequeuee  of  the  will,  and  the  peculiar  organization  of 
civil  society,  yet,  according  to  the  distribution,  and  spe- 
cies of  tenure  of  landed  property  which  has  heen  estab- 
lished in  any  country,  I  am  unwilling  to  believe  that  the 
testamentary  control  over  these  adventitious  rights,  ought 
to  be  in  any  degree  more  restricted,  or  less  full  and  ab- 
solute, than  over  the  natural  rights  which  each  man  pos- 
sesses to  the  labor  of  his  own  hands.  Civil  society,  like 
the  providence  of  nature,  should  make  the  rights  which 
it  confers  perfect.  So  that,  although  uatural  and  adven- 
titious rights  differ  in  the  sources  from  which  they  are 
derived,  there  should  be  no  difference  in  the  powers  which 
they  bestow.   This  is  necessary,  equally,  for  the  happi- 

tion  of  the  male  line,  shall  supplant  the  nearest  of  kin  by  the 
female  ;  and  other  barbarous  regulations  of  the  same  kind. 

*  Of  personal  property  the  Roman  law  assigned  one  third 
to  the  widow,  and  two  thirds  to  the  children;  if  there  were  no 
children,  one  half  was  assigned  to  the  widow,  the  other  half  to 
the  nearest  of  kin.  Where  the  intestate  had  left  neither  widow, 
nor  iineal  descendants,  the  whole  property  passed  to  the  next 
in  the  scale  of  kindred,  and  equally  to  those  of  equal  degrees, 
whether  by  the  male,  or  female  line. 


209 

ness  of  the  citizens,  and  the  encouragement  of  industry, 
that,  after  the  cares,  the  expense,  or  toil  they  have  be- 
stowed in  the  acquisition  of  their  property,  they  may  he 
able  at  last  to  gratify  the  fondest  affections  of  their  hearts 
in  the  dispositions  which  they  make  of  it.  This  principle 
is  recognized  in  the  civil  laws  of  our  own  country,  in  the 
arrangements  which  they  have  made  for  the  distribution 
of  the  property  of  those  who  are  either  so  negligent,  or 
so  unfortunate  i*,  to  die  intestate  :  they  have  endeavored 
to  consult,  as  far  as  possible,  the  general  affections  of 
human  nature  upon  that  subject.  Notwithstanding  this 
general  and  salutary  provision  of  law,  however,  most  men 
will  have  some  particular  wishes  with  regard  to  their  af- 
fairs which  cannot  be  embraced  in  any  common  regula- 
tion. For  these  ends,  every  citizen  has  it  in  his  power 
perfectly  to  provide  by  his  own  testamentary  arrange- 
ments.— On  the  question,  therefore,  which  gave  rise  to 
these  reflections,  I  conclude,  that  all  that  species  of  pro- 
perty which  is  stiled  real  estate,  is  the  effect  purely  of  the 
conventions  of  society.  In  a  state  of  nature  it  could  not 
exist.  But,  when  those  rights  have  been  incorporated  into 
the  very  constitution  of  the  republic,  and  identified  with 
the  person  of  the  proprietor,  then  the  power  of  transmit- 
ting them  by  testamentary  devise,  or  in  any  other  way  of 
transferring  them  under  the  restrictions  and  limitations 

under  which  they  have  been  originally  created,  is  a  re- 
vol.  ii.  d  d 


210 

suit  of  natural  law,  by  which  any  man  may  transfer,  ac- 
cording to  his  own  inclination,  rights  of  which  he  is  fully 
possessed.  The  last  will  and  testament  of  a  free  citizen, 
therefore,  forms  a  gratuitous  contract  of  the  highest  au- 
thority and  importance. 

Contracts  may  be  farther  subdivided,  and  distinguished 
into  contracts  of  sale, — contracts  of  hazard,  such  as  that 
useful  one  of  insurance,  or  that  dangerous  one  of  gaming 
— contracts  of  service — of  commissions — of  partnership-— 
of  lending  money  upon  interest ;  concerning  all  which 
there  are  many  legal  provisions  established,  and  there 
have  existed  many  moral  disquisitions,  which  it  would  be 
tedious,  and  unnecessary  to  detail  in  this  period  of  your 
studies.  They  are  left  to  your  future  experience,  and  in- 
tercourse with  the  world. 

OF  EXCEPTIONS  TO  CONTRACTS. 

There  are  four  just  exceptions  to  the  validity  of  con- 
tracts. They  are  void  when  either  fraud,  or  unjust  force 
has  been  employed  to  obtain  them  ;  or  when  they  respect 
things  unlawful  to  be  done,  or  impossible  in  their  nature 
to  be  executed.  Of  the  latter  I  have  spoken  already. — Of 
fraud,  which  is  any  deception  used  by  one  party  to  sur- 
prize a  promise  from  another,  we  may  observe  that  it  in- 
validates a  contract,  in  the  first  place,  because  deceit  is 
itself  an  injury,  and  merits  punishment  instead  of  being 


211 

permitted  to  receive  a  benefit ;  and  in  the  next  place,  be. 
cause  there  can  be  no  just  expectation  raised  in  the  party 
who  employs  the  artifice,  that  the  other  will  fulfil  a  pro- 
mise so  insidiously  obtained;  when  the  imposition  shall  be 
discovered. 

Unjust  force,  which,  in  like  manner,  invalidates  a 
contract,  consists  in  any  violence,  or  menace  employed 
by  a  person,  who  is  not  invested  with  any  adequate  civil 
authority  for  the  purpose,  to  extort  from  another  a  pro- 
mise of  advantage.  A  contract  obtained  by  such  unjusti- 
fiable means  is  void  for  the  same  reasons  which  invalidate 
fraud.  Force  is  an  injury,  and  never  can  excite  any 
reasonable  expectation  of  fulfilment,  as  soon  as  the  duress 
is  removed. 

The  laws,  however,  may  in  certain  cases,  compel  one 
eitizen  to  enter  into  an  equitable  contract  with  another, 
by  the  agency  of  the  public  magistrate,  and  these  com- 
pulsory stipulations  shall  notwithstanding  be  binding 
upon  the  coerced  party.  The  exception  of  force,  does  not 
annul  the  conventions  of  independent  nations  ;  for,  between 
them,  contracts  must  be  held  to  be  obligatory,  for  the 
sake  of  the  peace  of  the  world,  although  extorted  by  force, 
or  by  fear ;  unless  the  oppression  be  so  extreme  as  palpa- 
bly to  justify  resistance,  in  the  general  opinion  of  man- 
kind, as  soon  as  the  weaker  power  shall  have  acquired 
sufficient  strength  to  break  her  ties. 


212 

OF  THE  OBLIGATION  OF  TRUTH. 

Under  the  head  of  contracts  it  has  been  usual  to  con- 
sider the  obligation  of  truth  in  narration  and  discourse  in 
general,  as  well  as  in  the  more  particular  circumstance 
of  explicit  promises.  The  question  is  introduced  in  this 
place,  on  the  principle  which  has  been  laid  down  by  many 
writers,  that  all  speech  implies,  in  its  nature,  an  indirect 
contract  with  those  whom  we  address,  that  we  will  utter 
nothing  but  truth.  There  is,  however,  no  need  of  this 
fiction  to  establish  its  obligation.  It  rests  upon  the  same 
foundation,  with  the  obligation  of  contracts  themselves  ; 
that  is,  the  sentiments  of  human  nature, — and  the  inter- 
ests and  happiness  of  society.  No  man  can  utter  a  deliberate 
falsehood  without  some  compunction  of  heart,  some  feel- 
ing of  shame  and  self-reproach.  And,  certainly,  if  men 
could  not  rely  on  the  veracity  of  each  other  in  the  common 
intercourse  as  well  as  the  more  solemn  transactions  of 
life,  and  were  not  even  impelled  to  yield  this  confidence 
by  a  powerful  natural  instinct,  all  social  relation  would 
be  immediately  dissolved.  On  this  double  foundation  the 
general  obligation  of  truth  in  narration  seems  firmly  to 
rest.  Contracts  and  oaths  may  give  it  an  additional  sanc- 
tion, but,  in  a  virtuous  mind,  it  needs  no  other  authority 
than  the  voice  of  nature. 

Connected  with  this,  are  commonly  considered  two 
other  moral  questions  which  are  of  more  immediate  prac- 


113 

tical  importance — the  first  is,  wherein  the  essence  of  a  lie 
consists  ?  And  the  second,  whether  there  can  arise  any 
occasion  which  may  justify  a  departure  from  the  truth  ? 
— To  the  first  of  these  enquiries  I  answer  with  the  greater 
part  of  moral  writers,  that  a  lie  is  any  departure  in  words 
from  the  reality  of  things,  made  with  an  intention  to  de- 
ceive.— It  is  any  equivocation,  likewise,  in  which  a  sen- 
tence is  intentionally  so  constructed  that  the  literal  and 
grammatical  meaning  shall  vary  from  the  customary  and 
popular  sense  of  the  same  words ;  or,  from  that  sense  of 
them  in  which  it  is  known,  and  intended  that  they  shall 
be  taken. — It  is  further,  any  action  which,  from  the  com- 
mon relation  established  between  actions  and  designs,  is 
calculated  to  mislead  ;  as  in  that  villainous  decoy  which 
has  sometimes  been  practised  by  armed  vessels  at  sea, 
hanging  out  signals  of  distress  to  allure  defenceless  mer- 
chant ships  within  their  power. — Or,  finally,  it  is  any 
omission  of  a  material  circums  ance  in  a  narrative,  where 
we  profess  to  relate,  and  others  have  a  right  to  be  in- 
formed of,  the  whole  truth. — From  these  definitions  it  re- 
sults that  the  essence  of  a  lie  lies  in  the  intention  to  de- 
ceive. Where  no  deception,  therefore,  is  designed,  or  ex- 
pected to  be  operated,  as  in  parables,  fables,  or  customa- 
ry compliments,  or  in  the  common  practice  of  a  prisoner 
at  the  bar  pleading  not  guilty,  no  falsehood  is  ever  impu- 
ted. 


21* 

With  regard  to  the  second  question,  many  cireumstan- 
«es  have  been  ingeniously  stated,  and  many  delicate  sit- 
uations imagined,  in  which  it  has  been  supposed  to  be  in- 
nocent, or  even  laudable  to  depart  from  the  truth  ;  others 
have  been  proposed,  of  certainly  a  very  dubious  aspect,  to 
which  the  wisest  men  have  found  it  difficult  to  give  a  pre- 
cise, and  definite  answer.  For  example,  the  little  deceptions 
often  used  towards  the  sick  to  support  their  spirits,  and 
assist  their  cures,  or  lies  told  to  a  madman,  or  a  robber  to 
divert  him  from  a  fatal  design.  But  those  mirthful  tales 
of  falsehood  invented  merely  for  the  amusement  of  com- 
pany, or  to  try  their  credulity,  are  of  much  more  doubt- 
ful morality,  when  employed  in  the  most  ingenious  form ; 
but,  as  they  are  usually  practised,  a  man  can  hardly  con- 
descend to  such  artifices  without  degrading  his  character. 
The  custom  of  directing  a  servant  to  deny  his  master  or 
mistress  being  at  home,  to  avoid  seeing  a  visitor,  was, 
when  first  introduced,  a  palpable  immorality,  till  custom 
made  it  at  length  be  understood  as  only  a  mode  of  ex- 
pressing particular  engagement.  It  is,  however,  an  un- 
necessary departure  from  the  ingenuousness  of  truth, 
which  might,  no  less  inoffensively,  be  simply  expressed. 
Cicero  informs  us*  how  Scipio  Nassica  ridiculed  this  cus- 
tom which,  it  seems,  had  been  introduced  at  Rome.  Scipio, 
en  a  certain  day,  paying  a  visit  to  the  poet  Ennius,  was 

*  Cicero  2  de  orat.  n  276. 


215 

denied  by  a  servant  maid  who  had  been  instructed  to  say 
he  was  not  at  home.  Ennius,  in  his  turn,  went  to  pay  his 
compliments  to  the  senator,  who  called  out  to  his  servant 
as  the  poet  was  entering,  Tell  him  that  I  am  not  at 
home. — What!  says  Ennius,  when  I  hear  your  voice 
within  there  ? — Very  high  indeed !  replied  Seipio.  The 
other  day,  I  believed  your  maid,  when  she  told  me  you 
were  abroad ;  and  now,  forsooth,  you  won't  believe  me 
myself. 

A  general  rule  has  been  laid  down  upon  this  subject  by 
some  eminent  writers,  and,  among  others,  by  Dr  Paley, 
with  a  great  appearance  of  equity  ; — that,  as  the  virtue, 
or  the  vice  of  actions  depends,  in  a  great  measure,  upon 
the  utility,  or  the  injury  of  their  consequences,  whenever 
the  benefit  of  the  immediate  consequence  of  a  departure 
from  truth,  as  the  rescuing  of  an  innocent  life  from  the 
fury,  or  iniquity  of  an  assassin,  or  robber,  evidently,  and 
greatly  exceeds  the  remote  consequences  of  the  example, 
in  such  cases,  but  in  no  others,  can  it  be  justified.  The 
application  of  this  rule  to  individual  instances  can  hardly 
be  made  with  precision  in  any  regulations  of  law.  It 
must  be  left  to  each  man's  moral  feelings,  and  to  his  sense 
of  accountability  to  his  Supreme  Judge. 

Some  persons  possess  a  constitutional  and  unhappy  ten- 
dency to  an  excessive  indulgence  of  fancy  in  their  narra- 


216 

tions,  and  others  an  acquired  habit  of  exaggeration  oh 
every  subject  which  is  expected  to  excite  particular  in- 
terest, or  surprize  in  their  hearers.  Few  propensities 
detract  more  from  the  credit  and  respectability  of  cha- 
racter ;  and  there  are  few  which  have  been  found,  in  ex- 
perience, to  be  more  incurable. — Most  men,  in  the  negli- 
gent narratives  which  they  make  of  the  ordinary  an- 
ecdotes and  histories  which  are  constantly  circulating 
through  society,  are  prone  to  make  some  addition  to  what 
they  have  heard,  so  that  in  passing  from  one  to  another, 
they  become  so  magnified  and  distorted  as  often  to  lose  all 
resemblance  to  the  truth.  These  negligences  in  narration 
are  frequently  productive  of  effects  so  unfriendly  to  the 
happiness  of  social  life,  especially  in  the  circulation  of 
the  anecdotes  of  slander,  as  to  rank  them  among  the 
highest  offences,  not  only  against  charity,  but  justice. 
And  every  good  man  should  lay  it  down  as  a  sacred  and 
inviolable  rule  to  himself,  never  to  suffer  his  imagination, 
his  passions,  or  his  uncharitable  negligences  to  color,  or 
to  add,  in  the  smallest  degree,  to  what  he  has  heard  from 
the  purest  sources  in  the  intercourse  of  society,  and  es- 
pecially to  those  historical  narratives  that  can,  in  any 
way,  affect  injuriously  the  reputation  of  others. 

Having  made  this  digression  on  the  obligation  of  truth 
and  the  other  incidental  questions  connected  with  it,  I 


217 

return  again  directly  to  the  subject  of  contract,  and  to 
the  means  of  authenticating  it,  and  rendering  it  complete. 

I  have  said  before,  that  any  signs,  or  expressions  by 
which  we  communicate  an  intention,  and  lead  others  to 
depend  upon   its  accomplishment,  so  that  any  injury  or 
painful  disappointment  would  result  from  failing  to  fulfil 
it,  is  a  contract  binding  in  conscience.    But  to  render  it 
complete,  certain  forms  are  necessary  in  each   country, 
according  to  the  prescription  of  its  laws,  for  giving  to  the 
instrument  more  perfect  authenticity.    If  it  is  merely  a 
verbal  contract,  it  is  requisite  that  the  words  in  which  it. 
is  expressed  be  clear  and  precise  in  their  meaning,  and 
that  they  be  confirmed  by  the  testimony  of  one,  or  more 
competent  witnesses. — If  it  be  a  written  covenant  it  must 
be  authenticated  by  the  customary  signature  of  the  con- 
tracting party,  or  parties.    Besides  the  signature,  there  is 
usually  required  the  testimony  of  one,  two,  and  sometimes 
of  three  subscribing  witnesses.  By  the  civil,  or  Roman  law, 
two  witnesses  at  least,  are  required  to   substantiate,  or 
prove  a  contract.   But  by  the  common  law  of  England, 
which  is  generally  received  in  the  legal  proceedings  of 
the  United  States,  one  witness  is  sufficient;   except,  in 
some  instances,  wherein,  by  express  statute,  more  are  re- 
quired.  The  statute  of  frauds,  for  example,  requires  (hat 
the  devise  of  lands  should  be  attested  by  three  subscrib- 
ing witnesses.   And,  in  a  few  cases,  the  precautions  of  the 
vol.  ii.  e  e 


218 

civil  law  are  adopted  by  the  common  law ;  as  in  the  rules 
concerning  the  distribution  of  the  estates  of  intestates, — « 
and  in  maritime  causes,  in  which  two  witnesses  are  made 
necessary.  The  same  rule  is  adopted  in  America  in  those 
courts  which  have  been  substituted  in  the  room  of  the 
spiritual  courts  in  England.* 

The  law,  by  an  ancient  custom,  demands,  as  an  addi- 
tional security,  the  seals  of  the  contracting  parties.  A 
seal  is,  generally,  some  sign,  or  symbol  engraved  upon 
stone  or  metal,  and  impressed  upon  wax,  or  wafer,  in- 
tended, in  some  way,  to  designate  the  person,  or  commu- 
nity by  whom  it  is  used.  Before  the  use  of  writing  be- 
came common,  they,  probably,  served  instead  of  the  sig- 
nature of  the  name,  as  those  marks  at  present  do  which 
are  added  by  persons,  who  cannot  write,  to  their  names 
written  by  another. 

The  name  was  written  by  a  clerus  or  clerk,  that  is,  a 
learned  man,  as,  in  those  days,  they  were  esteemed  to  be 
who  could  write,  and  the  seal  was  added  by  the  contract- 
ing party  as  his  distinguishing  mark.  After  the  talent  of 
writing  became  more  generally  diffused  among  society, 
and  almost  every  man  was  capable  of  inscribing  his  own 
name,  still  the  seal  was,  by  custom,  continued  to  be 
added,  and  was  by  law  made  indispensable. 

*  As  in  the  court  of  the  ordinary,— the  orphan's  court, — the 
chancery,  and  admiralty  court. 


219 

As  seals,  by  the  commonness  of  their  use,  among  the 
lowest  as  well  as  the  highest  classes  of  citizens,  have  lost 
in  a  great  measure,  their  distinguishing  character,  and 
those  appropriate  emblems,  such  as  coats  of  arms,  or  pecu- 
liar devices,  by  which  families,  offices,  or  individuals  were 
designated,  are  but  rarely  employed,  it  has  been  allowed 
that  any  impression  made  with  any  instrument,  provided 
it  be  made  on  wax  or  wafer,  shall  serve  the  purpose  of  a 
seal.  A  seal,  in  its  present  form  is  certainly  not  requisite 
to  the  validity  of  a  contract  on  any  principles  of  reason ; 
it  is  still  required  however  by  statute  in  all  cases  of  spe- 
cialties, as  they  are  called,  through  deference  to  ancient 
custom,  for  which  the  law  has  always,  and  perhaps  justly, 
been  remarkable.  This  annexation  is  now  made  not  merely 
forthe  purpose  of  more  precisely  designating  the  person  of 
the  contracting  party,  but  carries  in  it  a  kind  of  hierog- 
lyphic signification,  implying,  that,  as  those  things  which 
are  closed,  finished,  and  bound  up,  are,  for  greater  securi- 
ty, usually  sealed,  so  the  persons,  engaged  in  this  contract 
which  is  finished  and  closed,  are  hereby  bound,  and  so- 
lemnly pledged  for  its  faithful  fulfilment. 

In  ancient  ages,  oaths  were  much  employed  in  the  rati- 
fication of  contracts.  They  are  a  solemn  appeal  to  God 
for  the  sincerity  of  our  purpose,  involving  an  imprecation 
of  his  judgments  on  any  fraudulent  failure  in  our  agree- 
ments.  They  were  frequently   accompanied  with  other 


220 

ceremonies  such  as  festivals,  and  the  mutual  exchange  of 
gifts  to  add  publicity  and  solemnity  to  the  transaction  ;  or 
with  the  erection  of  pillars,  or  other  durable  monuments 
to  perpetuate  its  memory.  With  these  were  often  blend- 
ed other  acts  of  religion,  as  libations,  sacrifices,  invoca- 
tions. The  Greeks  were  accustomed  to  divide  a  lamb 
destined  for  sacrifice,  into  two  parts,  between  which  the 
contracting  parties  successively  passed  :  whence  was 
derived  their  phrase  for  confirming  an  agreement,  temnein 
horlion.  The  Latins,  on  the  other  hand,  made  use  of  a  dif- 
ferent phrase,  ftr  ire  factum,  from  their  custom,  on  similar 
occasions,  of  knocking  down  a  victim  before  the  altar: 
from  which  has  been  borrowed  that  familiar  expression 
among  us  of  striking  a  hargain. 

Oaths  were  anciently  the  more  necessary  in  confirming 
contracts  of  all  kinds,  because,  writing  being  little  known  ? 
it  became  requisite,  by  the  impressions  of  religion  on  the 
heart,  to  supply  the  want  of  the  authentic  and  durable 
evidences  afforded  by  letters.  And  the  very  defective 
forms  of  jurisprudence  in  those  rude  ages  required  the 
more  efficient  aids  of  religious  fear  to  give  authority  to 
the  regulations  of  civil  society.  Occasions,  likewise  more 
frequently  occurred,  between  equal  and  independent  par- 
ties who  >vere  amenable  to  no  common  tribunal,  of  enter- 
ing into  mutual  compacts,  from  the  numbers  of  petty 
princes,  or  heads  of  independent  families,  or  clans  who 


221 

resided  in  the  vicinity  of  one  another.  In  that  state  of  so- 
ciety in  which  arts  and  letters  are  advanced  to  a  consid- 
erable degree  of  perfection,  such  means  of  ratifying  con- 
tracts are  less  necessary,  and  are  consequently  little  em- 
ployed. Oaths>  at  present,  are  principally  used  on  any 
public  emergency,  in  declarations  of  allegiance  to  the  civil 
authority  of  the  state,  or  as  pledges,  on  entering  into  of- 
fices of  important  trust,  for  the  faithful  performance  of 
their  duties. 

A  vow,  which,  in  some  respects,  is  analagous  to  an  oath, 
is  simply  a  contract,  or  obligation  under  which  any  indi- 
vidual voluntarily  chuses  to  bring  himself  to  God.  Few 
vows  are  required  by  rational  religion.  In  making  them, 
a  man  ought  to  be  very  cautious,  and  deliberate,  but,  when 
made,  he  ought  sacredly  to  fulfil  them.  With  them  civil 
society  has  no  concern.  They  are  transactions  solely  be- 
tween God,  and  the  individual. 

Of  the  general  rights  of  men  in  society  I  have  now 
treated,  particularly  of  those  of  property,  and  the  means 
of  acquiring  it,  by  labor  and  by  contract.  I  should  next 
consider  the  rights  of  command,  either  over  the  personal 
service  of  individuals,  or  the  civil  obedience  of  men  in  a 
constituted  state  of  society.  The  former  has  already  been 
a  subject  of  discussion  under  the  head  of  economics;  the 
latter  I  shall  reserve  to  be  more  particularly  explained 
when  I  come  to  treat  of  the  constitution  of  civil  govern- 


222 

mcnt ;  and  shall  conclude  this  lecture  with  a  few  obser- 
vations on  the  subject 

OF  POLICE, 

which  consists  in  the  limitation  and  direction  of  men  in 
the  use  of  their  respective  rights  in  society,  so  that  the 
exercise  of  the  rights  belonging  to  one  citizen,  shall  not 
impede  or  interfere  with  those  belonging  to  any  other. 
It  relates  to  the  manner  in  which  the  arts  may  be  prac- 
tised,— to  the  conveniences  of  travelling,  and  passing 
and  re-passing  along  the  streets  and  public  ways, — to  the 
order  of  markets, — to  the  times  and  manner  of  holding 
all  assemblies  of  the  people, — to  the  conveyance  of  intelli- 
gence,— to  the  regulations  for  the  convenient  management 
of  all  commercial  business.  And  in  this  last  subject,  the 
laws  of  police  have  their  principal  operation  and  effect. 
The  details  of  police  are  very  multifarious,  and  in  their 
minute  arrangements  can  be  learned  only  by  experience. 

As  the  objects  of  this  class  of  laws,  or  the  actions  to 
which  they  refer,  have  no  natural  morality,  or  immorali- 
ty attached  to  them,  but  become  lawful  or  unlawful  only 
in  consequence  of  legal  permission,  or  prohibition,  men 
have,  in  general,  but  a  slight  sense  of  the  evil  of  violating 
them.  The  regulations  of  police,  therefore,  ought  to  be 
made  with  great  prudence  and  moderation  ',  they  should  be 
seen  manifestly  to  conduce  to  the  convenience  of  the  whole 


223 

body  of  citizens ;  and  the  vigilance  of  the  magistrate 
should  supply  what  is  wanting  to  their  exact  and  faithful 
execution  in  the  strength  of  the  general  sentiment  of 
right  and  wrong  as  it  respects  the  obligation  of  these 
laws. 


224 


LECTURE  XXIV. 


OF  THE  DEFENCE  OF  CIVIL  RIGHTS. 
CONTENTS. 

The  means  of  defending  men's  rights  in  society — Of  pre- 
venting wrongs  by  the  general  influence  of  education — ■ 
by  the  protection  and  encouragement  of  religion — Of  the 
means  of  repelling,  or  repairing  wrongs  ; — in  a  state 
of  nature — in  a  state  of  civil  society-— Of  the  constitu- 
tion of  the  civil  tribunals — Of  the  separation  of  the  ju- 
diciary from  the  executive,  and  legislative  power — Of 
the  independence  of  the  judges  secured  by  the  permanency 
of  their  appointment  to  office,  and  by  the  ampleness  and 
security  of  their  provision'— Their  appointment  being 
made  by  the  executive — their  removal  should  depend  on 
the  legislative,  in  consequence  only  of  malversation  in 
office  established  before  the  highest  judicatory  in  the  na- 
tion— In  a  free  government  the  judges  should  be  few — 
in  an  absolute  monarchy  they  should  be  numerous — and 
in  a  despotism  the  supreme  judiciary  power  should  be 
united  with  the  highest  offices  of  religion — The  purity 
of  the  administration  of  justice  aided  by  the  publicity  of 
its  proceedings — Various  co-ordinate  courts  should  ul- 
timately terminate  in  one  supreme  tribunal. — Of  circuit 


225 

courts — of  juries  to  co-operate  with  the  judges,  thereby 
uniting,  in  the  constitution  of  the  tribunals,  the  best 
provision  for  impartiality  and  wisdom. — Of  the  power 
to  remove  trials  during  the  prevalence  of  violent  party 
passions. 

THE  second  part  of  jurisprudence  relates  to  the 
means  of  defending  those  rights  which  nature,  or  the 
laws  of  society,  have  bestowed  on  the  citizen.  They  con- 
sist in  preventing,  in  repelling,  or  in  repairing  wrongs. 
These  ends,  which  are  among  the  most  important  in  civil 
society,  can  be  effectually  accomplished  only  by  a  wise 
legislation,  and  a  prompt  and  faithful  administration  of 
the  laws.  The  prevention  of  crimes  may  generally  be  at- 
tempted with  the  most  favorable  hopes  of  success  by  pro- 
viding for  the  good  education  of  the  citizens,— by  pro- 
tecting and  encouraging  religion, — and  by  the  salutary 
example  of  the  public  justice. 

Wrongs  should  be  repelled  or  repaired  by  an  impartial 
administration  of  wise  and  just  laws, — by  obliging  the  cit- 
izens to  fulfil  their  contracts, — and  by  arresting  medi- 
tated and  punishing  actual  crimes. 

OF  PREVENTING  CRIMES. 

For  promoting  the  tranquility,  order,  and  happiness  of 

society,  no  provision  can  be  more  effectual  than  imparting 
vol.  ii.  vf 


226 

Die  means  of  instruction  to  every  class  of  the  people,  par- 
ticularly with  regard  to  their  moral,  and  social  duties,  and 
the  method  of  transacting  all  their  ordinary  affairs  with 
promptness  and  intelligence.  That  degree  of  knowlege 
which,  in  a  free  country,  may  be  imparted,  by  a  prudent 
legislation,  to  the  poorest  orders  of  the  citizens,  contrib- 
utes to  exalt  the  moral  feeling  of  the  public,  and  heightens 
the  love  of  order,  and  abhorrence  of  crimes.  And  by  an 
honorable  provision  for  cultivating  the  higher  branches  of 
science,  there  will  always  be  prepared  a  most  useful  class 
capable  of  directing  with  wisdom  and  prudence  the  opera- 
tions of  government.  And  although  they  should  never  be 
called  to  bear  an  immediate  part  in  the  active  labors  of 
legislation,  or  the  administration  of  the  laws,  they  will 
serve  as  so  many  fountains  of  light  distributed  through 
society,  to  shed  the  irradiations  of  moral  and  political 
truth  among  the  people,  and  with  them,  the  love  of  virtue 
and  of  order.  The  rays,  it  is  true,  may  often  strike  feebly 
upon  dull  and  uninstructed  minds,  yet  will  they  diffuse  a 
general  twilight,  which  is  infintely  more  friendly  to  pub- 
lic virtue,  and  social  happiness,  than  the  gross  manners, 
and  rude  and  untamed  passions  which  generally  accompa- 
ny national  ignorance,  and  the  total  destitution  of  science. 

Another,  and  important  mean,  for  the  prevention  of 
crimes  in  a  community,  consists  in  the  protection  and  en- 


227 

oouragement  given  to  religion.  Religious  knowlege  tends  to 
civilize  the  mind,  and  religious  fear  often  holds  a  power- 
ful control  over  the  violent  passions  of  the  most  vicious  of 
mankind.  To  the  influence  of  religion  have  all  wise  leg- 
islators in  antiquity  resorted,  to  lay  the  foundations  of 
society  most  securely,  and  to  promote  its  civilization.  The 
rites  with  which  the  people  continually  approached  its 
altars,  impressed  the  public  mind  with  a  salutary  rever- 
ence for  those  divine  powers  which  were  believed  to  pre- 
side over  the  world,  and  were  the  avengers  of  crimes. 
The  christian  religion  adds  principle  to  ceremony*  and 
instruction  to  the  rites  of  devotion,  and  seizes  on  the  soul 
hy  the  double  power  of  religious  illumination,  and  reli- 
gious awe.  As  we  possess,  however,  a  public  and  gener- 
ally acknowleged  code  of  religious  doctrine  which  every 
man  is  able  to  interpret  for  himself,  it  is,  perhaps,  not 
desirable  that  any  peculiar  exposition  of  it  should  be  pre- 
scribed by  the  authority  of  the  civil  government.  Every 
citizen  should  be  permitted  to  use,  and  sacredly  protected 
in  using,  his  own  right  of  opinion,  and  in  the  privilege  of 
associating  with  any  others  of  corresponding  sentiments, 
for  offering  their  common  devotions  to  the  Deity.  A  senti- 
ment of  religion  is  deeply  implanted  in  human  nature  ;  and 
it  is  justly  to  be  expected  tiiat  each  man  will  be  as  soli- 
citous to  preserve  the  privilege  of  expressing  it  according 
to  his  own  understanding,  or  the  dictates  of  his  own  heart, 


22S 

<as  the  government  can  be  to  enjoin  it.  By  trusting  to  in- 
dividual feeling  and  opinion,  there  can  be  no  danger  that 
religion,  so  necessary  to  the  existence,  so  useful  to  the 
ultimate  improvement  of  civil  society,  should  perish. 
The  variety  of  sects  will  even  be  useful  by  their  mutual 
emulation,  to  preserve  alive  that  pious  zeal  and  that  vigi- 
lant moral  discipline  over  their  internal  manners,  which 
will,  in  the  best  manner,  aid  the  public  virtue  in  the  great 
mass  of  society.  With  the  temporary  follies  of  enthusi- 
asm which  will  sometimes  spring  up  amidst  an  unenlight- 
ened* populace,*  the  government  has  no  concern.  They 
turn  the  mind  to  religious  reflection,  and,  if  not  intempe- 
rate ly  opposed,  they  always  subside,  in  time,  into  some 
more  sober  and  useful  form  of  religion  connected  with 
regular  morals.  The  encouragement,  therefore,  which 
good  policy  requires  the  civil  government  to  extend  to  this 
subject,  is  to  protect  every  man  in  the  sacred  rights  of  re- 
ligious opinion,  and  every  denomination  in  the  forms  of  its 
own  worship,  and  its  internal  discipline  over  its  own  mem- 
bers. In  this  liberal  indulgence  to  all  sects,  the  state  re- 
quires no  other  guard  for  its  tranquility,  against  any  tu- 
multuary efforts  of  enthusiasm,  than  effectual  prevention  of 
individual  zeal  from  restraining,  or  interfering  with  the 
civil  privileges  of  their  fellow-citizens. 


220 
OF  REPELLING,  AND  REPAIRING  WRONGS. 

Having  considered  the  general  means  of  preventing 
crimes,  and  introducing  peace  and  order  into  society,  as 
far  as  it  may  be  expected  in  this  imperfect  state  of  human 
nature  ,•  permit  me  next  to  observe,  that  the  object  of  its 
laws,  when  crimes,  or  wrongs  do  actually  exist,  embraces 
the  means  of  repelling,  or  repairing  them. 

"When  men  are  unconnected  with  one  another  by  any 
civil  or  political  tie,  a  condition  which  is  usually  denomi- 
nated a  state  of  nature,  they  may,  with  their  own  hands, 
repel  or  punish  the  wrongs  offered,  or  inflicted,  by  the  in- 
justice of  others.  But,  in  a  regular  state  of  civil  society, 
individuals  have  given  up  the  right  of  avenging  them- 
selves to  the  power  of  the  magistrate,  and  to  the  tribu- 
nals established  for  that  purpose  ;  except  only,  in  those 
cases  in  which  it  is  impossible,  from  the  suddenness  and 
emergency  of  the  ease,  to  interpose  the  aid  of  the  civil 
power  to  prevent  an  injury;  or  where  the  relief  afforded 
by  the  law  is  so  palpably  and  totally  inadequate  to  the 
wrong  that  is  likely  to  be  endured,  that  all  the  world  will 
justify  the  act — then  a  man  is  permitted  to  defend  himself. 

On  this  branch  of  jurisprudence,  therefore,  which  res- 
pects the  defence  of  the  rights  of  the  citizen,  we  are  to  at- 
tend chiefly  to  the  constitution  of  the  tribunals  for  the  ad- 
ministration of  the  laws,— to  the  principles  by  which. 


230 

those  tribunals  should  govern  themselves  in  pronouncing 
their  decrees, — to  the  evidence  of  crimes, — the  design,  the 
proportion,  and  the  nature  of  punishments. 

Or  THE  CONSTITUTION  OF  THE  TRIBUNALS. 

The  first  maxim  in  the  constitution  of  the  tribunals  is, 
that  the  judiciary  power  should  be  separated  in  its  exer- 
cise, from  the  executive,  and  legislative,  as  far  as  the  ne- 
eessary  union,  and  harmony  of  movement  in  all  the  de- 
partments of  government  will  permit.  The  union  of  all 
these  functions  in  an  individual  ruler,  or  in  a  single  body 
of  men,  necessarily  constitutes  a  despotism  ;  which  is  com- 
monly the  more  violent  in  its  operations  in  proportion  as 
the  numbers  of  that  body  are  increased,  a  principle  which 
we  have  seen  terribly  exemplified  in  the  late  national  as- 
sembly of  France.  The  union  of  the  judiciary  power  with 
either  of  the  others,  produces  a  formidable  approach  to 
tyranny.  Connected  with  the  executive,  it  would  afford 
a  dangerous  opportunity  to  a  capricious  or  designing  chief 
magistrate  to  exercise  an  arbitrary  dominion,  and  to  in- 
crease his  powers  in  the  state  to  a  dangerous  magnitude, 
by  forming  unjust  and  cruel  decisions  against  all  who 
Avere  opposed  to  his  views,  or  obnoxious  to  his  friends. 
A  rigorous  execution,  immediately  following  an  arbitrary 
decree,  would  leave  to  the  sufferer  no  hope,  or  means  of 
redress.  But  however  contrary  to  all  sound  principles  of 
legislation  such  a  junction  would  be,  the  union  of  the  ju- 


231 

diciary  functions  with  the  legislative  would  he  still  more 
unfavorable  to  the  administration  of  justice,  aud  the  se- 
curity of  the  citizen.  There  would  be  no  uniformity  in 
the  law,  and,  therefore,  no  clear  and  permanent  rule  of 
conduct  for  the  people  ;  because  every  decree  in  judgment 
w  ould  be  equivalent  to  a  new  law,  or,  if  it  were  necessa- 
ry to  give  more  formality  to  the  precedent,  it  would  be 
only  requisite  to  sanction  it  hy  a  law.  The  public  code 
would  be  continually  changing  with  the  various  cases 
which  should  come  for  their  determination,  before  the 
judges  who  would  also  be  the  legislators.  It  could  hardly 
be  expected  of  human  nature  that  they  should  not  along 
with  their  decrees  often  mix  their  own  prejudices,  and 
passions.  Having  all  powers,  they  would  be  under  no  con- 
trol. Legal  decisions,  would,  in  many  cases,  be  unavoidably 
affected  by  the  partialities  of  the  judges  ,*  and  would  too 
often,  suffer  a  sinister  influence  from  the  predominant 
factious  which  should,  at  any  time,  exist  in  the  state.  A 
door  would  thus  be  opened  to  endless  litigation,  and  to  the 
most  iniquitous  perversions  of  equity — and  the  people 
would  learn  to  fear,  not  the  impartial  and  inflexible  ma- 
jesty of  the  laws,  but  the  prepossessions,  the  caprice,  or 
venality  of  the  judge. 

But  when  that  distinction,  which  political  wisdom  has 
pointed  out,  between  the  respective  departments,  is  faith- 
fully preserved,  and  the  legislature  enacts  the  law,  which 


232 

judicial  skill  interprets,  and  applies  to  its  proper  object, 
there  is  infinitely  greater  probability,  that  the  application 
will  be  made  with  impartiality  and  justice.  The  law 
must  then  be  framed  under  the  view  of  general  circum- 
stances, and  not  under  the  bias  of  particular  preposses- 
sions, or  the  party  attachments  of  the  moment.  The  gen- 
eral principles  of  equity  must  prevail  in  the  law,  as  far 
as  they  are  understood  by  the  legislators,  when  it  is 
framed  without  any  reference  to  the  peculiar  interests  of 
individuals ;  and  the  same  reason  must  remove  from  the 
interpretation  of  it  all  the  biasses  of  enmity,  or  friend- 
ship. For  the  judges  being  amenable  to  public  opinion, 
and  to  the  legislature,  who  will  naturally  be  tenacious  of 
the  right  exposition  of  their  own  decrees,  must  interpret 
it  strictly  according  to  its  letter.  As  they  have  no  power 
to  frame,  they  have  no  privilege  to  modify  the  law.  This 
restriction  is  a  necessary  result  of  the  separation  of  the 
judicial  from  the  legislative  power.  And  although  it  is 
true  that  the  rigorous  confinement  of  the  judge  to  the  lite- 
ral exposition  of  the  law  must  be  productive  of  individu- 
al cases  of  hardship,  inasmuch  as  it  is  beyond  the  powers 
of  human  sagacity  to  frame  rules,  on  general  principles, 
which  can  embrace  with  precision,  the  perfect  equity  of 
every  Iiligated  question;  yet  suffering  this  individual  hard- 
ship is  preferable  to  investing  the  judge  with  the  preroga- 
tive of  bending  the  law,  even  to  the  most  consummate  ideas 


2r»  rt 
OO 

of  justice  which  Mould  he  constituting  him  legislator  as  well 
as  judge.  When  the  law  is  fixed,  the  citizens  may,  at 
least,  understand  their  duty,  and  conform  themselves  to 
its  prescriptions.  Having  a  known,  and  uniform  rule  he- 
fore  them,  they  have  it  in  their  power  accordingly  to  reg- 
ulate their  conduct,  and  take  care  of  their  own  interests. 
No  citizen  will  have  reason  to  fear  the  tyranny  of  office, 
or  the  injustice  of  passion.  The  same  protection,  and  de- 
fence is  equally  extended  to  all. 

Another  political  principle  of  the  highest  importance 
in  the  constitution  of  the  civil  tribunals  of  a  free  state  is, 
that,  not  only  should  the  actual  exercise  of  the  judicial 
functions  be  distinct  from  those  of  the  executive,  and  leg- 
islative, but,  that  all  temptation  to  an  undue  subserviency 
to  the  one,  or  the  other,  maybe  removed  from  the  judges, 
provision  should  be  made  in  the  constitution,  as  far  as 
possible,  for  their  complete  independence  upon  both. 
Being  appointed  to  be  the  incorruptible  interpreters  of  the 
law,  it  would  be  improper  that  they  should  be  exposed  to 
any  bias  in  their  decisions,  such  as  dependence  on  either 
of  those  bodies  would  naturally  tend  to  induce.  One  of 
the  first  requisites  in  order  to  secure  that  unbiassed  free- 
dom of  mind  which  the  important  duties  of  their  depart- 
ment require,  will  be  found  in  their  permanent  tenure  of 

office.   When  a  judge  feels  himself  secure  in  his  station, 
vol.  ii.  g  g 


23i 

whatever  primary  sentiments  of  gratitude,  towards  a 
prince,  or  executive  magistrate,  for  his  appointment,  may 
influence  him,  he  speedily  perceives  his  mind  erect,  and 
intent  upon  his  own  respectability  in  his  office,  which 
can  be  acquired  only  by  a  virtuous  and  dignified  discharge 
of  its  functions.  In  a  republic  like  ours,  in  which  the  men 
who  hold  the  executive,  and  legislative  departments  of  the 
state  are  frequently  changed  by  the  public  suffrages,  this 
independence  of  mind  is  the  more  speedily  attained  ; 
which  would  be  greatly  impaired,  or  totally  destroyed,  if 
his  continuance  in  the  office  of  judge  depended  on  the  will 
of  the  temporary  faction  in  power. — As  an  additional  pro- 
vision in  favor  of  justice,  the  permanency  of  his  judicial 
station  should  depend  only  on  one  condition  j  fidelity  in 
the  execution  of  its  duties,  which,  to  the  virtue  and  the 
talents  that  a  judge  ought  to  possess,  will  ever  place  his 
honors,  and  emoluments  in  perfect  security. 

It  is  a  question  of  great  importance,  and  of  some  diffi- 
culty in  the  science  of  politics,  to  determine  in  what  hands 
the  appointment  of  judges  should  be  placed,  so  as,  at  the 
same  time,  to  secure  competent  talents  in  the  office,  and 
to  avoid  the  danger  of  a  dependent  influence.  The  people 
are,  in  general,  inadequate  judges  of  the  qualities  which 
are  requisite  in  the  administration  of  the  laws,  it  would  be 
dangerous,  therefore,  to  commit  the  filling  of  the  judiciary 
department  to  popular  election  5  and  it  would,  in  that 


235 

§ase  also,  be  subject  to  the  worst  of  all  influence,  that  of 
the  predominant  parties,  or  passions,  which  might  at  any 
time  agitate  the  state.  Perhaps  the  wisest  policy  in  a  bal- 
anced government,  like  that  of  the  United  States,  is  to 
make  their  appointment  depend  on  the  executive  depart- 
ment, and  their  removal,  on  the  application  of  the  rep- 
resentatives of  the  people,  grounded  on  evidence,  before  a 
competent  tribunal,  of  their  malversation  in  office.  The 
judges  would  never  feel  themselves  secure,  if  their  re- 
moval depended  on  a  mere  act  of  the  legislature.  There 
are  frequently  seasons,  when  acts  of  that  kind  can 
be  pushed  through  such  an  assembly  by  the  force  of  fac- 
tion, or  by  a  popular  prejudice  which  may  be  artfully 
raised  against  (be  wisest  and  most  upright  men.  But 
when  tbe  charges  against  them,  as  is  wisely  ordained  in 
our  ehil  constitution,  must  be  submitted  to  a  judicial  in? 
vestigation  before  the  highest  tribunal  of  the  nation,*  it 
is  scarcely  possible  that  an  upright  judge  should  be  over- 
borne by  calumny,  or  faction  ;  and  he  may  securely  rest 
in  the  consciousness  of  his  own  virtue.  The  judiciary 
department,  therefore,  having  equal  reason,  by  their  ap- 
pointment on  the  one  hand,  and  their  apprehensions  of 
a  removal  from  office  on  the  other,  to  respect  both  the 
executive,  and  legislative  branches  of  government,  they 
wiU  be  exempted  from  an  undue  influence  from  either. 

*  The  senate  ot  the  United  States. 


236 

Virtue  and  conscious  integrity  will  be  the  shield  of  their 
independence,  and  of  that  freedom,  and  tranquility  of 
mind,  so  indispensable  in  their  arduous  station. 

To  render  the  independence  of  the  judiciary  complete, 
it  is  requisite  that  their  stipendiary  provision  be  as  inde- 
pendent, and  permanent  as  their  official  existence.  It  is 
observed  by  a  very  good  writer,  that  a  power  over  a 
meat's  subsistence  amounts  to  a  power  over  his  will.  If 
that  department,  therefore,  were  to  receive  its  provision 
only  by  occasional  grants  from  the  legislature,  who  pre- 
side over  all  the  fiscal  concerns  of  the  nation,  which 
might  consequently  be  varied  according  to  favor  or  pre- 
judice, it  would  create  a  dependence  which  might  often 
prove  unfavorable  to  the  interests  of  public  justice.  The 
constitution  of  the  United  States,  aware  of  this  danger, 
lias  with  equal  wisdom  and  justice  provided,  that  the 
judges  shall,  at  stated  times,  receive  for  their  services  a 
compensation  which  shall  not  he  diminished  during  their 
continuance  in  office.  The  variation  in  the  value  of 
money,  or,  sometimes,  in  the  general  habits  of  living,  may 
occasionally  indicate  the  necessity  of  an  augmentation  in 
their  compensation ;  but,  at  no  time,  shall  their  just  ex- 
pectation, at  entering  into  their  office,  be  disappointed  by 
any  diminution  which  might  create  a  sense  of  dependence. 

It  is  equally  necessary,  with  the  same  view,  that  Ae 
administration  of  justice  be  rendered  respectable  by  the 


237 

ampleness  of  its  provision  ;  that  no  suspicion  may  exist  ot 
corruption  ;  that  men  of  the  highest  talents  may  he  in- 
vited to  the  hench  ofjusticej  and  the  tribunal  of  the  laws 
be  invested  at  once  with  the  majesty  of  wisdom,  and  the 
sacredness  of  unsuspected  integrity.  A  small  tax  this, 
which  the  public  pays  for  the  preservation  of  the  rights 
of  the  citizens,  the  purity  of  the  fountains  of  justice,  and 
the  tranquil  and  secure  state  of  property,  and  industry. 

Another  political  maxim  which  has  been  established 
by  experience,  as  well  as  by  reason,  is,  that,  in  a  free 
government,  the  members  which  compose  the  supreme 
judiciary  body  of  the  state  ought  not  to  consist  of  a  large 
number.  Numerous  bodies  are  seldom  capable  of  the 
slow  and  patient  investigations  which  liberty  demands. 
They  are  liable,  besides,  to  be  influenced  by  the  popular 
passions  which  may,  at  any  time,  agitate  the  public  mind. 
And  there  is  undoubtedly  a  defect  in  the  constitution  of 
the  department  for  the  administration  of  justice,  in  which 
the  responsibility  of  the  judge  ought  to  be  of  the  highest 
grade,  when  this  salutary  check  on  human  frailty  is 
greatly  lessened  by  dividing  that  responsibility  among 
large  numbers.  This  maxim,  so  useful  and  necessary  in 
governments  in  which  the  highest  degree  of  liberty  exists, 
ought  to  be  reversed  in  absolute  monarchies  which  are 
not  tempered  by  a  proper  mixture  of  republican  restraints. 
Here  the  supreme  depositary  of  the  laws  ought  to  be  nu- 


23S 

merous.  The  influence  of  a  monarch  over  a  large  assem- 
bly is  less  than  over  a  very  small  body.  The  ardor  of 
popular  passions,  and  even  some  degree  of  faction,  may 
be  useful  in  such  an  assembly,  to  prevent  too  great  ser- 
vility to  power.  Of  this  the  parliament  of  Paris,  before 
the  late  revolution,  often  exhibited  striking  examples,  in 
the  independence  of  their  spirit,  and  their  resistance  to 
the  arbitrary  views  of  the  monarch.  In  a  despotic  gov- 
ernment the  head  of  the  judiciary  should  always  be  in- 
vested with  the  supreme  offices  of  religion.  It  is  necessa- 
ry by  the  supposed  divinity  of  his  functions,  to  overawe 
the  despot  himself.  In  such  states,  the  Sultan,  or  the 
Schah  may  trample  on  the  liberties,  and  sport  with  the 
lives  of  his  subjects  ;  but  it  is  always  dangerous  to  touch 
religion,  or,  with  a  profane  hand,  to  insult  the  sacredness 
of  its  ministers. 

The  purity  of  the  administration  of  justice,  in  the  next 
place,  is  greatly  assisted  by  the  publicity  of  all  proceed- 
ings in  its  courts.  The  public  eye,  and  the  fear  of  public 
reproach,  will  ever  form  a  powerful  check  on  any  discre- 
tionary latitude  in  the  interpretation  of  the  law  which  a 
judge  might  be  disposed  to  assume.  And  especially  when 
the  eyes,  and  ears  of  all  those  who  are  conversant  in  the 
profession,  and  are,  probably,  not  less  skilled  in  the  juris- 
prudence of  their  country  than  himself,  are  open  to  every 
step  in  his  progress.   This  will  necessarily  prove  an  im- 


239 

portant  security  fop  the  faithful  application  of  the  law  to 
its  proper  ends,  the  correction  of  wrongs,  and  an  effica- 
cious protection  of  the  civil  rights  of  the  citizens. 

In  the  judiciary  system  in  states  of  considerable  ex- 
tent, it  is  generally  necessary  for  the  more  convenient  ad- 
ministration of  justice,  to  establish  various  courts  of  con- 
current, or  co-ordinate  jurisdiction.  In  all  such  cases,  it 
is  absolutely  requisite,  on  principles  of  the  soundest  ju- 
ridical policy,  that  there  be  constituted  one  supreme  tri- 
bunal to  which  appeals  may  be  brought  from  the  courts 
below,  if  any  probable  cause  exist  of  doubt,  or  error  in 
their  decisions.  Unless  these  various  courts  were  ulti- 
mately united  in  one  head  possessing  a  sufficient  control 
over  their  adjudications,  they  might  establish  different 
rules  of  proceeding,  and  different  interpretations  of  the 
law  within  their  respective  departments  $  and  two  causes, 
similarly  circumstanced,  might  receive  opposite  determi- 
nations as  they  should  come  for  adjudication  before  one 
court,  or  another.  Such  collisions  would  unavoidably  in- 
troduce confusion  into  the  jurisprudence  of  the  country, 
injurious  to  the  rights,  and  the  peace  of  the  citizens.  The 
inconsistency,  and  opposition  of  rights  and  claims,  wiiich 
would  naturally  result  from  such  a  system,  will  be  re- 
strained, or  corrected  by  the  establishment  of  a  superior, 
and  controling  authority,  always  consistent  with  itself  in 
its  decrees,  which  will,  in  time,  produce  a  uniform  rule 


240 

of  decision  in  all  the  rest.  A  supreme  court  is  requisite, 
likewise,  to  confine  the  jurisdiction  of  the  other,  and  co- 
ordinate tribunals  within  their  proper  limits.  That  love 
of  power,  which  is  so  congenial  to  human  nature,  and  the 
confidence  of  each  in  its  own  superior  wisdom,  would 
prompt  the  respective  courts  to  enlarge  their  separate  ju- 
risdictions, and  thus  produce  uncertainty  in  the  rights  and 
tenure  of  property  ;  unless  one  supreme  power  he  ad- 
mitted which  shall  have  authority  to  compose  every  con- 
troversy. 

Circuit,  or  itinerary  courts,  appointed  "for  different  dis- 
tricts of  an  extended  state,  in  which  the  different  members 
of  the  supreme  judicatory  should  be  required  respectively 
to  preside,  would  relieve  many  of  the  difficulties,  or  dan- 
gers attending  co-ordinate  and  independent  courts,  at 
once,  by  bringing  justice  near  to  the  doors  of  the  citizens, 
and  saving  the  necessity,  or  temptation  of  expense,  delay, 
and  uncertainty  by  frequent  appeals.  The  judge,  having 
employed  his  life  in  the  study  and  administration  of  the 
laws,  would  naturally  have  acquired  the  confidence  of  the 
people,  and  of  the  parties  at  the  bar ;  and  being  prac- 
tised in  all  the  principles  and  forms  of  the  supreme  court, 
the  universal  fountain  of  justice  to  the  state,  the  same 
principles  and  forms  would  of  course  be  introduced  into 
the  courts  of  the  several  districts ;  so  that  one  uniform 


241 

system  of  law  would  pervade  every  part  of  the  political 
body. 

The  next  consideration  in  the  constitution  of  the  tribu- 
nals that  should  engage  our  attention,  is  the  means  of  uni- 
ting, as  far  as  is  practicable  to  human  imperfection,  a* 
perfect  knowlege  and  interpretation  of  the  law,  with  the 
most  fair  and  impartial  application  of  it  to  each  case  as  it 
may  be  varied  by  its  attending  facts  and  circumstances. 
This  union,  was  attempted  in  the  Roman  jurisprudence  by 
combining  the  judices  along  with  the  prtetor  in  the  for- 
mation of  their  courts  of  justice,  and  in  that  of  Great- 
Britain,  and  the  United  States  of  America,  by  using  the 
assistance  of  the  jury  along  with  the  judge  who  presides 
upon  the  bench.   In  the  judges,  or  presidents  of  the  tri- 
bunals, provision  is  supposed  to  be  made  for  the  perfect 
knowlege  of  the  laws,  and  a  profound  acquaintance  with  the 
whole  science  of  jurisprudence.  But,  as  they  must  possess 
the  ordinary  passions,  prepossessions,  and  foibles  of  men, 
enjoying,  as  they  do,  a  fixed  official  station,  these  foibles, 
whatever  they  are,  must  be  generally  known,  so  that,  if  the 
dispensation  of  justice  were  deposited  wholly  in  their 
hands,  they  Mould,  almost  necessarily,  be  exposed  to  the 
continual  solicitations  of  parties,  and  to  every  kind  of  art- 
ful intrigue,  or  interested  address  ;  against  which  it  is  not 

easy  for  human  nature  to  preserve  a  firm  and  unbiassed 
vol.  ii.  n  h 


242 

impartiality.  The  jury,  who  are,  in  some  measure,  as- 
sessors with  the  judge,  and  are  selected  on  the  spot,  and 
wholly  for  the  occasion,  may  reasonably  be  supposed  to 
be  free  from  this  kind  of  influence,  and  to  possess  that  in- 
difference to  the  cause,  and  parties  at  the  bar,  which  will 
be  peculiarly  favorable  to  the  fairness  of  their  decision  ; 
especially,  as  their  verdict  respects  only  the  facts  on  which 
the  sentence  of  the  law  is  founded,  and  to  which  their 
judgments,  uninstructed  in  legal  science,  are  perfectly 
competent.*  Men,  chosen  only  for  the  occasion,  will  most 
probably  be  exempted  from  the  influence  of  intrigue,  and 
from  all  the  prepossessions  which  would  often  assail,  and 

*  The  jury,  which  enters  into  the  constitution  of  ou»*  civil  tri- 
bunals, is  by  its  peculiar  office,  appointed  to  determine  only  on 
matters  of  fact.  The  judges  decide  on  all  points  of  law.  Yet  a 
general  verdict  of  guilty,  or  not  guilty,  pronounced  by  the  jury, 
often  involves  a  mixed  proposition  of  law  a.ndfact,  and  the  jury, 
of  course,  assumes  the  prerogative  of  pronouncing  on  the  whole. 
But  they  are  directed  as  to  the  law  by  the  court.  Sometimes, 
indeed,  instigated  by  some  headstrong  member,  they  presume 
to  disregard  this  direction,  and  oppose  the  opinion  of  the  judge. 
In  that  case  the  court  may  set  aside  the  verdict,  and  award  a  new 
trial.  In  the  history  of  legal  proceedings  in  England  there  have 
been  instances  in  which  three  successive  verdicts  on  the  same 
question  have  been  rejected,  and  the  cause  submitted  to  a  new 
investigation.  According  to  the  strictness,  therefore,  of  our  ju- 
diciary constitution,  the  facts  alone,  on  which  the  decision  of 
guilt  or  innocence  is  founded,  are  to  be  ascertained,  and  de- 
termined by  the  jury,  and  the  law  is  to  be  pronounced  by  the 
judge. 


243 

might  sometimes  be  able  to  reach  the  integrity  of  theper.r 
manentjudges. 

Juries  are  attended  with  another  advantage  to  the  com- 
munity ;  that,  selected  immediately  from  the  body  of  the 
people,  and  possessing  their  sentiments  and  feelings,  they 
will  naturally  prove  the  most  upright  guardians  of  their 
rights  and  liberties  ;  equally  concerned  to  defend  the  in- 
nocent, because  they  may  themselves  be  exposed  to 
unjust  accusation,  and  to  punish  the  guilt}'  for  the  sake 
of  general  order.  Although  they  are  not  supposed  to  be 
learned  in  the  law,  they  are  capable  of  understanding  its 
rules  as  they  are  expounded  from  the  bench,  and  of  per- 
ceiving their  application  to  the  facts  before  them.  To 
unite  the  highest  wisdom  of  jurisprudence  with  the  most 
unbiassed  integrity  in  judging,  no  institution  has  hitherto 
been  devised  in  civil  society  which  contributes  so  certainly 
as  such  a  constitution  of  the  tribunals.* 

The  present  article  I  conclude  with  the  judicious  re- 
mark of  Dr  Paley.    "  This  admirable  contrivance,  unites 

*  A  maxim,  however,  olthe  greatest  importance  to  be  ob- 
served, if  there  are  different  orders  of  citizens  in  a  state,  is,  that 
the  jury  should  always  be  of  the  peers,  or  of  the  same  rank  in 
society  with  the  accused.  Without  a  strict  observance  of  this 
condition,  there  would  often  be  reason  to  fear  the  want  of  an  im- 
partial distribution  of  justice.  The  accused  would  consider  him- 
self in  the  hands  of  his  enemies. 


2*4 

t{  the  wisdom  of  a  fixed,  with  the  integrity  of  a  casual 
"  judicature,  and  avoids,  in  a  great  measure,  the  inconve- 
"  nienccs  of  both.  The  j  udge  imparts  to  the  jury,  the  ben- 
fl  efit  of  his  erudition  and  experience ;  the  jury,  by  their 
«  disinterestedness,  check  any  corrupt  partialities  which 
<«  previous  application  may  have  produced  in  the  judge. 
"  If  the  determination  Mere  left  to  the  judge,  the  party 
"  might  suffer  under  the  superior  interest  of  his  adversa- 
«  ry :  if  it  were  left  to  the  uninstructed  jury,  his  rights 
"  would  be  in  still  greater  danger  from  the  ignorance  of 
«  those  who  were  to  decide  upon  them.  The  present  wise 
«<  admixture  of  chance  and  choice  in  the  constitution  of  the 
"  court,  in  which  his  cause  is  tried,  guards  him  equally 
"  against  the  fear  of  injury  from  either  of  these  causes."* 

To  one  danger  juries  are  sometimes  exposed  from  the 
natural  sympathy  of  mankind  with  their  sect  in  religion, 
their  party  in  politics,  or  whatever  principle  of  union  with 
a  particular  class  in  society,  creates  a  distinction  between 
them  and  their  fellow-citizens.  When  any  popular,  or 
party  passion  becomes  warm  and  violent  in  a  particular 
district,  it  is  often  difficult  to  find  in  that  place  an  impar- 
tial jury.  The  prejudices  for,  or  against  individuals  may 
be  highly  unfriendly  to  an  equal  administration  of  justice. 
In  such  instances,  however,  the  danger  may  generally  be 

t  Paley's  Mor.  and  Pol.  Phil.  p.  379— 80— Ed.  Bost.  1795. 


245 

obviated  by  a  power,  properly  lodged,  to  remove  the  trial 
ot  a  different  county,  or  district  of  the  state,  in  which  the 
same  parties,  and  prejudices  are  not  found  to  exist. 

Finally,  to  render  the  constitution  of  the  court,  and  the 
defence  of  the  people's  rights  complete,  it  is  an  important 
privilege  which  should  be  permitted  to  every  party,  to 
employ  as  counsel,  in  maintaining  their  cause,  and  ex- 
plaining for  them  all  the  laws  which  have  any  bearing 
upon  it,  the  assistance  of  men,  who  have,  by  time,  and 
study,  made  themselves  thoroughly  acquainted  with  these 
voluminous  guards  of  the  public  liberty. 


2*6 


LECTURE  XXV. 


GENERAL  PRINCIPLES  BY  WHICH  THE  TRIBUNALS  OUGHT 
TO  BE  GOVERNED  IN  PRONOUNCING  THEIR  DECREES— 
AND  OF  CRIMINAL  JURISPRUDENCE. 

CONTENTS. 

Hides  by  which  the  courts  should  he  governed  in  interpret- 
ing the  Jaws,  and  pronouncing  their  decrees — of  prece- 
dents and  law  reports — of  the  use  of  analogies  in  ex- 
plaining and  applying  the  law — of  the  simplicity  of  the 
rules  of  morality— -and  the  multiplicity  of  civil  laws— of 
tlie  unanimity  of  the  jury — of  courts  of  equity — of  crim- 
inal jurisprudence — of  the  evidence  of  ci%imes — of  the 
design  of  punishment  in  civil  society— of  the  propor- 
tion of  punishments — of  the  nature  of  punishments — of 
the  multiplicity  of  capital  punishments — of  the  ends  of 
punishments — of  sanguinary  punishments. 

HAVING  already  proposed  several  important  maxims 
respecting  the  constitution  of  the  tribunals  of  justice,  I 
proceed  now  to  lay  down  some  general  principles  by  which 
these  tribunals  ought  to  be  governed  in  pronouncing  their 
decrees. 


2-i7 

The  great  and  comprehensive  principle,  indeed,  which 
embraces  and  penetrates  the  whole,  is  that,  in  interpreting 
each  law,  the  court  should  rigidly  adhere  to  its  spirit  and 
meaning,  as  far  as,  by  its  obvious  expression,  with  other 
accompanying  circumstances,  it  can  be  clearly  ascertain- 
ed ;  or,  which  is  the  same  thing,  as  far  as  the  will  and  in- 
tention of  the  legislator  in  enacting  it  can  be  known. — 
The  following  rules  on  this  subject  have  been  prudently 
adopted  in  the  courts  of  England,  and  America. 

1.  To  construe  the  law  according  to  the  plain  meaning 
of  the  words  in  which  it  is  expressed,  giving  to  those 
words  their  common,  and  received  signification. 

2.  When  the  language  of  the  law  happens  not  to  be 
precise,  but  is  of  equivocal  signification,  then,  in  order  to 
discover  the  intention  of  the  legislator,  the  law  is  to  be 
consulted  as  it  stood  before  this  act  was  framed, — the  evil, 
or  defect  proposed  to  be  remedied  by  it  is  to  be  examined, 
and  such  construction  given  to  the  whole,  as  will  most 
effectually  reach  this  remedy.  The  title  and  preamble  of 
the  law  often  point  to  its  meaning,  and  are  very  properly 
resorted  to  in  order  to  explain  its  enacting  clause. 

3.  When  once  a  judicial  determination  on  the  meaning 
and  extent  of  a  statute  has  taken  place,  it  then  forms  a 
precedent  by  which  all  future  decisions  on  the  same  or 
similar  points  will  be,  in  a  great  measure,  directed.   When 


24  S 

such  adjudication  has  heen  made,  although  it  he  not  on 
the  very  law  in  question  ',  yet  if  it  be  on  the  meaning  and 
extent  of  the  same,  or  similar  expressions  in  other  statutes, 
it  is  to  he  regarded  as  a  good  rule  to  guide  the  courts  in 
their  interpretation. 

These  principles  are  requisite  to  restrain  the  caprices 
or  partialities  that  may  exist  in  the  minds  of  the  judges 
towards  the  parties  at  the  bar,  or  with  respect  to  the 
question  litigated  before  them.  They  are  no  less  requi- 
site to  prevent  the  variableness,  and  uncertainty  which 
would  be  introduced  into  the  law  of  the  land  if  each  judge, 
in  pronouncing  his  decrees,  were  left  to  be  governed 
merely  by  his  own,  perhaps  prejudiced,  sense  of  what  is 
just  and  equitable,  in  each  case  which  is  presented  for 
his  decision. 

It  is  true,  no  human  foresight  can  anticipate  all  the 
cases  which  may  arise,  and  come  into  litigation  under 
each  particular  law.  The  utmost  sagacity  of  legislators, 
therefore,  cannot  prevent  their  laws,  in  individual  instan- 
ces, from  operating  hardly  under  a  rigid  and  literal  in- 
terpretation. Of  some  of  these  examples  the  hardship 
might,  doubtless,  be  alleviated,  if  greater  latitude  were 
allowed  the  judges  in  expounding  the  law  ;  and  they  were 
permitted  sometimes  to  forsake  the  regular  course  of 
precedents,  and  follow  their  own  sense  of  equity.   But 


249 

fixed  and  known  laws,  and  an  invariable  rule  of  judging 
are  of  more  importance  to  the  peace  and  order  of  society 
than  can  be  the  equity,  or  hardship  of  many  single  deci- 
sions. When  the  law,  and  the  decrees  of  the  tribunals  are 
fixed  and  uniform,  every  citizen  will,  of  course,  have  it 
in  his  power  to  conform  his  actions  to  them,  the  rule  be- 
ing clearly  known  :  and,  for  the  same  reason,  many  un- 
necessary, and  disquieting  litigations  among  the  citizens 
will  be  precluded.  But,  if  the  judges  are  permitted,  in 
any  degree,  to  modify  the  established  standard  according 
to  their  own  apprehensions  of  perfect  right,  in  particular 
cases,  immediately  the  laws  become  unsettled, — the  jus- 
tice of  the  country  is  involved  in  obscurity, — no  limits  can 
be  prescribed  to  the  variableness,  and  the  contradictory 
decisions  of  different  tribunals, — and  endless  litigation 
will  be  invited  from  the  hopes  which  each  man  will  en- 
tertain of  being  able  to  gain,  or  blind  the  opinion  of  his 
judge. 

In  almost  every  law  which  is  framed,  there  necessarily 
arises,  through  the  defect  of  the  human  understanding, 
which  cannot  foresee  all  the  infinite  shapes  of  human  ac- 
tion, some  ambiguity  in  its  application  to  many  individual 
cases.  This  evil  is  attempted  to  be  corrected  in  the  course 
of  legal  adjudications.    When  a  new  case  occurs  which  is 

not  marked  with  sufficient  precision  in  the  statute,  it  is  the 
voi,.  ii.  i  i 


250 

duty  of  the  judiciary  to  endeavor  to  give  it  as  far  as  it 
may  be  done  by  their  decree,  that  application  which  is 
most  congenial  with  its  spirit  and  intention,  and  which, 
combining  all  circumstances,  will  form  the  best  and  clear- 
est rule  of  legal  justice  in  all  future  and  similar  instances. 
A  point,  thus  determined,  serves,  as  far  as  other  cases, 
by  resemblance,  or  analogy,  can  be  affected  by  it,  to  re- 
move the  ambiguity  of  the  law,  and  to  form  a  rule  here- 
after to  direct  the  judgment  of  the  courts.  And  it  is  a 
maxim  in  judicial  proceedings,  founded  on  principles  both 
of  wisdom  and  justice,  that  the  rule,  once  established, 
should  be  rigidly  adhered  to  ;  and  especially  after  it  has 
been  confirmed  by  repeated  adjudication,  unless  there 
should  be  discovered  in  it  some  manifest  departure  from 
the  letter,  or  the  spirit  of  the  law  which  it  professes  to 
explain  and  enforce. 

New  cases,  invested  with  different  circumstances,  must 
frequently  occur  in  an  extended  country,  and  amidst  a 
numerous  population.  These  must  be  decided  with  the 
same  caution,  and,  when  decided,  become  new  precedents 
to  govern  the  decrees  of  future  tribunals.  Hence  origi- 
nate the  numerous  volumes  of  reports  with  which  the 
jurisprudence  of  a  free  country  is,  almost  necessarily,  in- 
cumbered. The  vast  variety  of  these  reports,  with  the 
reasons  on  which  the  respective  adjudications  have  been 
founded,  serve  greatly  to  increase  the  extent  and  intriea- 


251 

cy  of  the  law  as  a  science  ;  and  render  it  absolutely  re- 
quisite that  the  judges  should  be  profound  lawyers,  and 
not  only  deeply  versed  in  legal  principles,  but  extensively 
acquainted  with  the  records  of  reports  which  are  the  his- 
tory of  legal  adjudications.  On  the  same  reason  is  ground- 
ed the  nesessity  of  having  the  law  opened,  and  explained 
at  the  bar,  and  the  judgments  which  have  been  awarded 
in  cases,  similar  to  that  in  actual  controversy,  recited,  and 
compared  by  men  who  have  made  the  science  generally 
the  study  and  employment  of  their  lives. 

Not  unfrequently,  a  considerable  embarrassment  arises 
to  the  court  itself  from  the  difficulty  of  determining  un- 
der what  law,  or  precedent  a  particular  case,  which  is 
diverse  in  some  material  circumstance,  from  all  former 
examples,  may  be  brought.  Perhaps  it  cannot  be  precise- 
ly brought  under  any  ;  and  the  court  is  obliged  to  have  re- 
course to  certain  principles  of  analogy  to  find  a  sufficient 
resemblance  between  the  present,  and  any  former  cases  to 
afford  grounds  of  a  consistent  decision  in  conformity  with 
the  general  train  of  legal  proceedings.  A  question  may 
frequently  have  some  resemblance  to  others  which  have 
already  been  adjudged.  And,  it  may  possess  an  analogy, 
in  various  respects,  to  several  cases  which,  taken  in  all 
their  circumstances,  are  very  different  from  one  another. 
In  quoting,  and  comparing  these  analagous  cases  consists 
a  great  part  of  the  contention  of  the  bar.   And,  in  apply- 


252 

ing  them  dexterously,  a  lawyer  displays  his  ingenuity  and 
skill.  The  rule  of  decision  to  the  court  will  be,  the  apt- 
ness, the  strength,  and  number  of  analogies  on  one  side, 
more  than  on  the  other.  And  its  wisdom  is  seen  in  com- 
paring and  reconciling  analogies  with  one  another,  or  in 
making  such  discriminations  as  will  save  the  authority 
of  all  the  rules  alledged  in  the  cause  \  or,  in  yielding  only 
to  the  strongest. 

It  is  an  enquiry  frequently  made,  even  by  the  judicious 
part  of  society,  whence  this  rigid  adherence  to  prece- 
dents ? — It  is  necessary  equally,  for  the  stability  of  the 
law,  and  the  tranquility  of  the  citizens.  It  is  absolutely 
requisite,  in  a  free  country,  that  the  discretion  of  judges 
be  restricted  by  positive  rules  which  no  impulses  of  fa- 
vor, or  opposition,  shall  dare  to  violate,  or  bend  to  the 
purposes  of  private  passion.  And  no  less  necessary  is  it 
for  the  general  peace,  order,  and  contentment  of  the 
country,  that  each  member  of  the  community  should,  in 
every  event,  certainly  expect  the  same  decision  in  his  own 
case  which  has  ever  been  rendered  to  others  in  similar 
circumstances.  By  a  judicious  adherence  to  precedents, 
while  justice  is  rendered  to  the  parties,  in  the  individual 
question  before  the  judges,  an  important  check  is  imposed 
on  imprudent  litigation,  arising  out  of  the  same,  or  like 
subjects  of  controversy,  in  all  time  to  come.  As  long  as 
any  uncertainty  exists  with  regard  to  the  issue  'of  con- 


253 

tro verted  questions  of  right,  or  property,  the  self-love, 
and  pride  of  mankind  will  be  ready  to  disturb  the  quiet  of 
society  by  their  unfair,  or  malignant  suits  at  law.  This 
litigious  spirit  is  in  train  to  be  repressed,  by  every  deci- 
sion which  contributes  to  fix  immutably  a  new  point  in 
the  law. 

It  seems,  to  many  persons,  strange  and  unaccountable, 
that,  since  the  moral  duties  of  mankind  are  few  and  sim- 
ple, and  the  whole  theory  of  justice  and  morality  may  be 
embraced  in  a  volume  small,  and  intelligible  to  the  most 
ordinary  understanding,  the  laws  of  almost  all  nations 
should,  notwithstanding,  be  extended  into  such  ample 
volumes,  and  the  administration  of  justice  be  esteemed 
such  a  difficult  science,  and  be,  intact,  such  a  tedious  la- 
bor. And  it  has  been  erroneously  conceived,  by  some  im- 
mature politicians,  that  the  work,  of  legislation  has  been 
artfully  magnified,  and  the  whole  structure  and  process 
of  our  courts  of  justice  have  been  artificially  complicated 
and  intangled  for  the  benefit  of  a  particular  order  of  men. 
They  have,  accordingly,  entertained  many  crude  projects 
in  their  fancies,  for  simplifying  our  civil  codes,  and  re- 
forming the  whole  order  of  our  judicial  systems.  That 
some  amendments,  if  wisely  attempted,  might  be  intro- 
duced into  both,  is  probable.  But  in  the  rage  for  simpli- 
fying, there  is  great  danger  that  justice  would  be  render- 
ed more  uncertain,  and  the  settled  order  of  society,  and, 


254 

the  tenure  of  property  would,  in  time,  be  miserably  dis- 
turbed. Besides,  the  true  ground  of  objection  to  the  mul- 
tiplicity of  our  laws,  and  the  tedious  process  of  our  civil 
courts,  is  mistaken.  It  is  not  denied,  that  the  knowledge  of 
the  moral  duties  of  men  in  a  state  of  nature,  or  of  civil 
society,  is  a  very  simple  science  ,•  and  its  details  are  redu- 
cible within  a  small  compass.  When  the  actions  and  in- 
tentions of  men  are  distinctly  known  and  fairly  stated,  a 
fact  which  is  always  supposed  in  every  theory  of  morals, 
then  the  conclusions,  that  is,  the  grounds  of  approbation 
or  condemnation,  are  plain,  explicit,  and  definite.  But  it 
is  impossible  to  apply  the  same  simple  process  in  the  ad- 
ministration of  the  laws  of  the  land.  Here  the  fact,  that 
is,  the  action  which  is  in  question  before  a  civil  tribunal, 
is  hardly  ever  distinctly  know  n  till  sought  out  by  a  long 
process  of  enquiry,  and  frequently  by  a  detail  of  inferen- 
ces drawn  from  imperfect  circumstances,  from  dubious 
and  contending  evidence,  and  elicited  from  contrasted  pro- 
babilities, which  must  exercise  the  ingenuity  of  the  bar, 
the  judgment  and  candor  of  the  bench,'  whence  it  arises 
that  the  decisions  of  justice  cannot  always  be  clearly,  and 
immediately  pronounced.  The  laws  of  the  land,  necessar- 
ily aiming  to  reach  all  the  oblique,  and  equivocal  actions 
of  men,  often  obliged  to  bring  to  light  those  which  are 
most  occult,  and,  amidst  the  innumerable  disguises  of  hu- 
man conduct,  and  intention,  to  search  out  the  true  mind 


%55 

and  purpose  of  the  action,  must  employ,  for  these  ends,  a 
vast  multiplicity  of  provisions,  which  must  consequently 
lay  open  an  immense  field  of  litigation.  But  after  the  fact, 
in  consequence  of  these  previous  investigations,  stands 
manifest  in  its  full  and  perfect  shape,  the  application  of 
the  principles  of  justice  are  not  more  ohscure  and  uncer- 
tain than  are  the  plain  rules  of  morality  in  our  domestic, 
and  social  relations.  The  theory  of  morals,  when  the  fact 
on  one  side,  and  the  rule  on  the  other,  are  distinctly  pre- 
sented  to  view,  offers  simple  and  obvious  conclusions  ;  the 
difficulty  and  uncertainty  of  the  practical  application  of 
the  rules  of  justice  in  civil  tribunals  arises  from  the  in- 
volution, and  complication  of  human  actions,  under  the 
studied  arts  of  disguise. 

But  this  does,  by  no  means,  express  the  whole  reason 
of  the  multiplicity  of  laws  in  civil  society.  In  the  infinite 
relations,  and  connexions  of  men  in  this  extended  inter- 
course, public  expediency  requires  a  vast  number  of  defi- 
nite rules  to  be  fixed  for  the  transaction  of  its  complicated 
affairs  ;  rules,  frequently,  which  involve  no  natural  mo- 
rality or  immorality,  and  are  only  necessary  because  some 
rule  ought  to  be  prescribed  for  the  general  convenience. 
We  may  take,  for  example,  the  rules  of  inheritance,  or  of 
the  distribution  of  the  property,  real  or  personal,  of  intes- 
tates. There  are  many  things  necessary  to  the  order  and 
benefit  of  society  which  are  not  fixed  \>ith  precision  by 


256 

any  natural  law  of  justice,  which  must  therefore  be  pre- 
scribed by  the  positive  rules  of  society  :  as,  for  instance, 
that  precise  period  in  the  life  of  man  at  which  he  shall 
be  competent  to  receive  or  bind  his  estate.  There  are 
many  questions,  likewise,  with  regard  to  the  rights  of 
property  which  depend  on  transfers,  agreements,  customs 
that  have  existed  in  periods  long  antecedent  to  the  birth 
of  the  present  proprietor.  But,  it  would  be  impossible 
here  to  enumerate  the  various  causes  which  contribute  to 
multiply  the  regulations  of  civil  society,  to  introduce  un- 
certainty, or  doubt  in  the  application  of  the  law,  or  neces- 
sary delays  in  its  administration.  These  must  be  left  to 
your  future  studies,  or  future  experience  in  the  inter- 
courses of  life.  But  it  ought  particularly  to  be  borne  in 
mind,  that  it  is  infinitely  dangerous  for  projectors,  igno- 
rant of  the  principles  of  civil,  and  political  society,  by  at- 
tempting to  introduce  an  ideal  perfection  into  its  order,  to 
depart  too  far  from  ancient  and  established  usages.  Des- 
potism delights  in  the  simplicity  of  its  civil  code.  It  gives 
more  scope  to  the  discretionary  authority  of  its  judges, 
who  are  its  princes.  But  liberty  requires  a  multiplicity  of 
laws  to  defend  her  \  and  her  laws  are  her  shield  and 
buckler. 

As  a  still  greater  security  to  liberty,  and  the  equity  of 
legal  decisions,  we  have  seen  that  the  jury  has  been  added 
to  our  tribunals  as  a  species  of  co-adjutors  to  the  bench. 


257 

to  assist  in  determining  the  facts  involved  in  the  question, 
to  which  the  judge  points  out  the  application  of  the  law. 
An  important  and  distinctive  principle  in  the  use  of  ju- 
ries, which  takes  place  in  the  jurisprudence  of  Great- 
Britain,  and  the  United  States,  consists  in  requiring  a 
perfect  unanimity  in  their  verdict.  The  propriety  of  this 
rule,  certaiuly,  does  not  immediately  appear ;  especially, 
as  unanimity  is  frequently  procured  hy  a  species  of  com- 
pulsion, confining  the  jury  in  their  chamber,  till,  hy  a 
certain  compromise  of  opinions,  they  are  tapered  down, 
at  length,  to  such  a  coincidence  as  may  consent  to  be  em- 
braced in  a  common  verdict.  The  principle  of  unanimity, 
indeed,  has  been  found,  on  some  occasions,  favorable  to 
lenity  in  criminal  prosecutions ;  and  sometimes  it  has 
induced  a  divided  jury  to  receive  an  opinion  from  the 
maturer,  and  better  informed  judgment  of  the  bench. 
But,  perhaps,  after  all,  the  principle  of  unanimity  in 
these  juridical  verdicts,  would  be  better  exchanged  for 
that  of  some  certain  majority. 

Because  the  rigid  letter  of  the  law  is  not  always  the 
most  favorable  to  exact  justice,  and  it  is  incompetent  to 
juries  to  determine  questions  of  right,  it  is  sometimes 
useful,  to  institute  a  tribunal  of  equity,  which  may  cor- 
rect, in  some  measure,  the  errors  of  the  law  ,*  or,  as  Mon- 
tesquieu says,  interpret  the  law  in  favor  of  herself,  who 

tojl.  ii.  k  k 


258 

always  aims  at  the  public  good,  and  intends  the  most 
perfect  justice  to  every  citizen. — To  such  an  idea  of  a 
court  corresponded  the  tribunals  of  eentumvirs  at  Rome, 
and  the  courts  of  chancery,  and  exchequer  in  England. 

The  perfect  distinction  between  these  courts,  and  courts 
of  common  law,  is  hardly  understood  by  the  greater  part 
of  the  ordinary  practitioners  at  the  bar,  and  has  not  been 
clearly  explained  except  by  a  few  of  the  most  eminent 
legal  writers.  A  competent  knowledge  of  this  subject 
can  be  acquired  only  by  consulting  the  best  expositors  of 
the  English,  or  American  law.  But  as  these  respectable 
authors  have  stated  the  difference  to  consist  chiefly  in  the 
mode  of  proof  permitted  in  the  courts  of  equity,  in  the 
mode  of  trial,  and  the  mode  of  granting  relief,  I  confess 
I  have  not  been  able  to  see  the  necessity  of  two  separate 
tribunals,  when  the  good  effects  of  both  seem  to  be  equal- 
ly attainable  by  investing  the  courts  of  common  law,  on 
proper  occasions,  with  chancery  powers.* 

*  As  far  as  respects  the  mode  of  proof,  a  court  of  equity  may 
administer  a  purgatory  oath  to  the  party  concerned,  in  order  to 
reach  such  circumstances  relative  to  a  depending  cause,  as  rest 
wholly  within  his  private  knowledge.  And,  with  regard  to  the 
mode  of  trial,  this  court  may  grant  a  commission  to  take  the 
written  testimony,  on  oath,  of  witnesses  who  may  be  in  foreign 
countries,  or  who  may  be  too  remote,  or  too  infirm,  or,  from 
peculiar  causes,  may  be  unable  to  attend  at  the  place  where  the 
court  sits.    And,  finally,  en  the  mode  of  granting  relief, — on  the 


259 
OF  CRIMINAL  JURISPRUDENCE. 

In  treating  of  the  defence  of  the  rights  of  the  citizens, 
which  consists  in  the  protection  of  their  property,  and 
their  personal  safety,  the  subject  which  next  requires 
your  attention,  after  the  constitution  of  the  tribunals  of 
justice,  is  the  criminal  jurisprudence  of  a  country.  This 
Lead  includes  the  prosecution  of  crimes,  and  the  design, 
the  proportion,  and  the  nature  of  the  punishments  by 
■which  they  are  to  be  restrained,  or  chastised.  And,  on 
this  subject  it  should  ever  be  remembered,  that  it  is  not 
less  necessary,  for  the  security  of  the  citizen,  that  crimes 
should  be  detected  and  punished,  than  it  is  requisite  for 
the  preservation  of  liberty,  and  the  general  happiness, 
that  no  man  should  be  punished  before  he  is  convicted  of 
guilt ;  that  is,  of  some  action  that  is  injurious  to  his 
fellow-citizen,  and,  that  is  clearly  and  definitely  forbidden 
by  the  laws.  Equally  inconsistent  with  the  principles  of 
liberty  would  it  be  that  any  citizen,  before  conviction, 
should  be  subjected  to  confinement,  or  restraint  in  his 
person  ;  except  on  probable  presumptions  of  guilt ;  when 
the  constraint  should  not,  in  any  case,  proceed  farther 
than  may  be  necessary  to  hold  him  to  trial. 

compelling  the  fulfilment  of  executory  agreements,  the  con- 
struction of  securities,  Etc.  See  Blackstone's  Commentaries, 
book  iii.  ch.  27. 


260 
OF  THE  EVIDENCE  OF  CRIMES. 

Conviction  of  guilt  can  justly  be  grounded  only  upon 
evidence.  Evidence  is  two-fold,  direct,  and  circumstan- 
tial ;  the  former  consisting  in  the  attestation  of  a  witness 
to  his  personal  knowledge  of  the  fact ;  the  latter,  of  such 
circumstances  as  usually  accompany  the  action  in  ques- 
tion, and  which,  happening  at  the  times,  and  places,  and 
in  the  combinations  in  which  they  are  said  to  have  taken 
place,  strongly  imply  the  existence  of  the  fact. 

The  testimony,  whether  it  partake  of  the  former  spe- 
cies of  evidence,  or  of  the  latter,  ought  ever  to  be  re- 
quired on  the  oath,  or  solemn  affirmation  of  the  witness, 
implying  an  appeal  to  the  knowledge  and  justice  of  Al- 
mighty God ;  because  the  sentiment  of  religion  is  reason- 
ably presumed  to  confirm  the  sentiment  of  truth  in  man- 
kind, and  to  afford  an  additional  pledge  to  society  for  the 
verity  of  the  evidence. 

In  the  ease  of  direct  evidence,  the  law  commonly  re- 
quires the  attestation  of,  at  least,  two  witnesses  to  the 
same  fact.  If  the  evidence  be  circumstantial,  it  requires 
this  attestation  to  two  or  more  successive  facts  belonging 
to  the  same  train  of  circumstances,  and  all  bearing  an 
evident  reference  to  one  ultimate  fact. 

Two  witnesses  are,  for  the  best  reason,  required  to 
substantiate  the  principal  fact,  when  the  question  rests 


261 

upon  direct  evidence ;  for,  although  the  testimony  of  one 
man,  of  known,  and  undoubted  integrity,  outweighs,  in 
its  intrinsic  value,  and  will  outweigh,  in  the  public  opin- 
ion, that  of  many  men  of  suspected  character  ;  yet,  as 
the  law  cannot  estimate,  with  precision,  the  characters  of 
witnesses,  and  some  general  rule,  which  may  he  relied 
on,  is  necessary  to  be  fixed,  the  rule  of  two  has  been 
adopted  as  the  safest,  and  best.  One  witness  may  often 
be  liable  to  be  corruptly  practised  upon ;  two  are  not 
equally  subject  to  a  sinister  influence.  And  if  their  testi- 
mony be  perverted  by  any  interested  motives,  it  is  difficult 
to  make  the  stories  of  two  persons  cohere,  in  all  their 
parts,  in  support  of  a  falsehood.  But  to  require  a  greater 
number  of  witnesses  to  authenticate  a  fact  judicially,  as 
was  done  at  Athens  where  three  were  required  by  their 
courts,  would,  on  many  occasions,  impede  the  course  of 
justice,  and  defeat  the  intention  of  the  law,  which  aims 
at  the  discovery,  and  the  salutary  restraint  and  correction 
of  crimes.  Although  the  law  cannot  designate  the  charac- 
ters of  witnesses,  and  the  degree  of  credit  which  ought  to 
be  yielded  to  their  testimony  respectively,  yet  will  they 
necessarily  be  taken  into  the  estimation  of  the  judges,  and 
the  jury,  and  cannot  fail  to  have  their  influence  on  the 
ultimate  sentence  of  the  court.  The  nature  of  the  thing, 
and  the  intention  of  law,  demand,  that  the  court  should 


262 

possess  some  discretion  on  this  subject,  especially    in 
favor  of  the  accused. 

There  are  some  occult  crimes  that,  from  their  nature, 
ean  seldom  admit  of  proof  from  two,  or  more  witnesses, 
which,  however,  the  interests  of  society  require  to  be  vi- 
gilantly detected,  and  rigorously  punished.  AVith  regard 
to  these  crimes,  the  testimony  of  one  witness,  supported 
by  strong  corroborating  circumstances,  may,  under  the 
prudent  guards  which  the  law  provides,  become  a  reason- 
able ground  of  conviction. 

There  are  two  principles  in  requiring  evidence  which 
ought  ever  to  be  sacredly  adhered  to  in  the  humane  laws 
of  a  civilized  nation.  The  first  is,  that  no  man  should  be 
compelled  to  give  evidence  against  himself.  A  law  re- 
quiring such  testimony  would  be  doing  violence  to  nature, 
which  is  always  a  pernicious  principle  in  legislation,  and 
is  productive  of  many  unhappy  effects  wherever  it  is  prac- 
tised, in  civil  or  domestic  society.  Among  other  fatal  con- 
sequences, it  tends  to  debauch  morals  by  offering  power- 
ful temptations  to  the  violation  of  truth.  In  the  oaths  of 
evidence,  therefore,  administered  by  the  court,  this  except 
tion  is  always  understood  to  be  implied. — The  second  is, 
that  evidence  ought  never  to  be  extorted  by  torture. 
This  barbarous  and  irrational  method  of  question  has  ob- 
tained in  most  rude  ages,  and  uncivilized  nations.  And  it 


263 

is  but  lately  that  it  lias  been  disused  in  some  of  the  polish- 
ed countries  of  Europe. — Torture  has,  certainly,  no  rela- 
tion to  truth  j  but  only  to  a  man's  power  of  enduring 
pain. 

On  the  remaining  subjects  under  the  head  of  jurispru- 
dence, I  shall  content  myself  with  very  few  and  general 
observations,  as  it  is  not  the  object  of  these  lectures  to 
make  complete  jurists,  but  to  sketch  such  an  outline,  and 
present  to  you  such  comprehensive  principles,  as  may 
lead  your  future  enquiries  and  be  hereafter  filled  up 
with  advantage  by  study  and  experience. 

OF  THE  DESIGN  OF  PUNISHMENTS  IN  CIVIL  SOCIETY. 

The  most  perfect  idea  of  justice  in  apportioning  pun- 
ishment to  guilt  is  the  infliction  of  pains  in  exact  propor- 
tion to  the  moral  depravity  of  the  offender.  But  this 
supposes  a  knowledge  of  the  actions  of  men,  and  of  the 
dispositions  and  tendencies  of  the  human  heart,  beyond 
the  sagacity  and  penetration  of  human  tribunals,  and  is 
the  prerogative  of  that  wisdom  and  power  alone  which 
regulates  the  moral  system  of  the  universe.  The  penal 
cedes  of  civil  communities  ought  to  have  reference  only 
to  the  peace  and  order  of  the  state.  Crimes  are  punish- 
able by  them  just  so  far  as  the  public  good  is  concerned. 
This  is  the  proper  end  of  all  civil  penalties;  and  this  end 
indicates  the   proper   measure  of  punishment   for   the 


264 

various  offences  which  disturb  the  order  and  tranquility 
of  society.  Taking  this  principle  for  our  guide,  these 
pains  must  relate  either  to  the  reparation  to  be  made  to 
the  sufferer  by  any  crime, — to  the  reformation  of  the 
criminal, — or  to  the  restraint  of  future  crimes  in  the 
community,  by  the  salutary  example  of  the  public  justice. 
— Reparation  is  the  object  principally  in  the  view  of  the 
law,  and  reformation,  or  restraint,  only  in  a  secondary 
degree,  if  at  all,  in  decrees  compelling  the  fulfilment  of 
contracts, — in  damages  or  fines  assessed  for  slander; — 
and  for  injuries  arising  from  personal  violence. — The 
reformation  of  the  offender  is  chiefly  in  view,  and  other 
ends  only  incidentally,  in  those  punishments  which  con- 
sist in  solitary  confinement,  either  with,  or  without  the 
addition  of  hard  labor:  The  labor  being  added,  or  omitted 
by  different  legislators  with  the  same  view;  either  to 
prepare  the  criminal  for  some  industrious  occupation 
when  the  period  of  his  punishment  shall  expire,  by  the 
habits  of  employment  during  his  confinement;  or  to  in-  * 
cline  him  to  seek  for  employment,  by  the  pain  of  absolute 
idleness,  united  with  the  self-compunction  which  natur- 
ally springs  up  in  the  breast  of  an  unoccupied  culprit, 
during  the  same  period.  The  general  restraint  of  crimes, 
and  the  necessity  of  inspiring  a  salutary  caution  and  fear 
in  those  who  are  inclined  to  commit  them,  is  the  end  in 


265 

all  capital  executions,  and  in  those  penalties  which  con- 
sist in  public  disgrace,  and  shame. 

OF  THE  PROPORTION  OF  PUNISHMENTS, 

The  end  for  which  the  pains  of  the  law  are  inflicted, 
should  serve,  in  some  degree,  to  regulate  their  propor- 
tion to  the  various  offences  they  are  destined  to  correct. 
The  severity  of  their  pains  is  not  always  to  be  measured 
by  the  actual  depravity  of  heart  indicated  by  the  crime, 
or  the  circumstances  attending  its  commission,  but  to  be 
determined  by  other  considerations  immediately  relative 
to  the  public  good.  For  example,  the  facility  with  which 
certain  acts  injurious  to  the  peace  of  society,  or  the  pro- 
perty of  the  citizens,  may  be  committed,  may  require  a 
proportionably  severer  penalty  to  restrain  them.  There- 
fore the  stealing  of  sheep,  and  of  horses  has  been  punished 
with  greater  rigor  by  the  English  law,  and  by  the  law 
of  several  of  the  United  States,  than  many  simple  felonies 
which  intrinsically  cannot  be  regarded  as  less  criminal 
than  these.  For  the  same  reason,  stealing  out  of  a  shop, 
is  subjected  to  a  higher  penalty,  than  from  a  dwelling- 
house,  although  the  immorality  of  the  latter,  if  estimated 
by  the  hardened  dispositions  which  lead  to  its  perpetra- 
tion, is,  perhaps,  greater  than  that  of  the  shop-lifter. — - 
The  difficulty  of  detection  is  generally  considered  by  the 

law  as  affording  ground  for  increasing  the  rigor  of  the 
vol.  ii.  l  I 


266 

penalty.  But,  -where  injuries  may  generally  he  guarded 
against  hy  a  reasonable  degree  of  precaution  and  care, 
the  law  seldom  punishes  with  severity.  Hence  violations 
of  trust,  although  justly  considered  among  the  most 
culpable  of  human  actions,  are  generally  passed  over 
with  comparatively  light  animadversion.  But  where  a 
trust  must  necessarily  be  reposed,  as  in  a  servant  in  your 
family,  and  no  ordinary  precaution  can  guard  you  against 
the  injurious  effects  of  his  unfaithfulness,  there  the 
penalty  again  rises  in  its  severity. 

There  are  certain  aggravations  in  the  commission  of 
crimes  which  are  ever  regarded  as  reasonable  causes  for 
increasing  the  rigor  of  the  law.  For  example,  their  bold, 
and  frequent  repetition;  or  their  being  accompanied 
with  circumstances  of  cruelty,  or  a  hardened  disregard 
of  the  moral  feelings  of  nature.  They  are  proofs  of  such 
malignant  depravity  of  heart  as  is  highly  dangerous  to 
the  peace  and  safety  of  society,  and  ought  to  subject  the 
culprits  to  the  heavier  pains. 

Among  the  aggravations  of  crimes  we  may  place  in  the 
first  rank,  combinations  for  their  perpetration.  These 
are  accompanied  with  so  much  higher  alarm,  and  greater 
danger  to  the  public  peace,  than  any  effort  of  individual 
outrage  could  be,  that  such  combinations  merit  to  be 
punished  with  an  exemplary  justice.   And,  among  gangs 


267 

of  combined  villains,  it  would  be  good  policy  in  the  law 
to  make  a  discrimination  between  the  ringleaders,  or 
foremost  actors  in  any  criminal  design,  and  the  rest  of 
the  band.  Such  discriminations  will  frequently  con- 
tribute to  the  more  effectual  detection  of  the  most  culpa- 
ble, and  to  break  the  spirit  of  union  which  connects 
them.  It  will  serve  at  the  same  time,  to  impose  some 
check  on  the  formation  of  similar  combinations,  and  the 
execution  of  their  iniquitous  purposes,  from  the  difficulty 
of  finding  those  among  them  who  will  be  hardy  enough 
to  encounter  so  much  greater  risks  than  their  com- 
panions. 

Crimes  accompanied  with  terror  to  others,  or  with 
riolence  to  their  persons,  and  especially  with  danger  to 
life,  have  so  much  more  pernicious  an  effect  on  the  public 
peace,  and  on  all  the  most  valuable  ends  for  which  men 
enter  into  society,  than  simple  thefts,  or  frauds,  that  they 
require  to  be  repressed  by  a  severer  hand.  On  this  princi- 
ple, burglaries  perpetrated  in  the  night  are  justly  sub- 
jected by  the  law  to  a  higher  penalty  than  the  same 
actions  committed  in  the  day. 

Among  frauds,  forgeries  have  generally  the  most  per- 
nicious influence  on  society ;  and  among  forgeries  those 
which  affect  the  ordinary  medium  of  commercial  circu- 
lation, suoh  as  bank  notes,  or  bills  of  exchange,  are  more 


268 

pernicious  than  those  which  consist  in  falsifying  bonds, 
mortgages,  and  such  specialties  as  are  not  usually  trans- 
ferred from  hand  to  hand,  and  may,  therefore,  be  easily 
detected. 

But  the  highest  species  of  crimes  is  of  those  which  af- 
fect the  life  of  a  citizen.  These  have  been  punished  cap- 
itally by  the  laws  of  all  nations.  Some  political  theorists, 
under  a  mistaken  feeling  of  humanity,  have  proposed  the 
abolition  of  capital  punishments  from  the  criminal  code 
universally,  even  for  the  crime  of  murder.  This  false 
lenity  would,  probably,  prove  much  more  destructive  to 
human  life  than  the  law  which  inflicts  death  for  this 
highest  offence  against  the  peace  of  society.  For  one 
murderer  who  might  be  reclaimed  by  solitary  confine- 
ment, and  labor,  or  by  any  other  private  expedient,  ten 
would  be  invited  to  this  cruel  indulgence  of  their  malig- 
nant passions,  by  the  hope  of  impunity.  For,  to  the  most 
depraved  part  of  society,  a  punishment  removed  from 
the  public  view,  and,  therefore,  soon  forgotten,  and  which 
should  be  known  not  to  affect  the  life  of  the  criminal, 
would  be  regarded  as  an  impunity  for  guilt.  And  cer- 
tainly it  cannot  be  desirable  to  expend  the  wealth,  and 
energies  of  society  in  the,  almost,  hopeless  task  of  re- 
claiming one  hardened  offender,  at  the  imminent  hazard 
of  the  lives  of  many  valuable  citizens.  But,  if  it  would 
be  impolitic  wholly  to  expunge  capital  punishments  from 


269 

the  criminal  jurisprudence  of  the  state  ;  it  is  not  less  an 
offence  against  reason  and  justice,  to  inflict  death,  with 
the  British  law,  on  crimes  of  various  degrees  of  malignity. 
It  appears  to  be  doing  violence  to  humanity,  and  the 
common  sentiments  of  mankind,  to  force  crimes  of  the 
most  different  grades,  under  one  denomination,  for  the 
sake  of  inflicting  upon  them  a  disproportioned  punish- 
ment. Thus,  in  the  laws  of  England,  and,  in  some  in- 
stances, in  our  own,  which  are  borrowed  from  them,  the 
abused  name  of  felony  is  made  to  involve  a  multitude  of 
crimes  which  have  no  relation  to  one  another,  but  this 
unhappy  designation  of  name  which  serves  to  sweep  them 
all  equally  into  the  snare  of  death. — Many  of  the  British 
jurists  vindicate,  or  excuse,  this  solecism  in  legislation,  by 
saying  that  all  these  crimes,  in  their  highest  grade,  de- 
serve an  utter  excision  from  the  benefits  of  civil  society, 
and  society  has  no  severer  penalty  than  death  for  the 
most  atrocious  offences.  If  there  are  many  degrees  of 
depravity  indicated  by  different  felonies,  and  there  seems 
to  be  an  unnecessary  cruelty  in  subjecting  some  of  the 
mildest  of  these  to  the  severest  sentence  of  the  law,  it  is 
said  the  constitution  has  provided  a  remedy  for  the  most 
obnoxious  of  these  examples,  by  the  power  of  reprieve 
vested  in  the  supreme  executive  magistrate.  It  is  said, 
by  these  politicians,  that  it  is  useful  to  the  state  that  all 
these  criminals  should  lie  under  the  fear  of  death  de- 


270 

nouneed  by  the  law :  and,  at  the  same  time,  that  the  chief 
executive  authority  of  the  nation  should  have  it  in  his 
power  to  provide  for  the  interests  of  humanity  by  occa- 
sionally rescuing  a  criminal  of  an  inferior  order  from  too 
severe  a  fate. — I  question,  however,  the  wisdom  of  the 
law,  or  the  validity  of  the  apology. 

A  great  desideratum  in  the  science  of  jurisprudence, 
which,  however,  has  hardly  ever  been  attempted,  is  a 
proper  scale  of  crimes  and  punishments.  And  he  would 
deserve  well  of  his  country  who  should  introduce  such  an 
improvement  into  its  legislation. 

OF  THE    NATURE  OF  PUNISHMENTS. 

In  the  structure  of  the  penal  code  of  states,  it  is  the 
indication  of  a  wise  and  prudent  policy  to  derive  its  pun- 
ishments as  much  as  possible  from  the  nature  of  the 
crimes  they  are  destined  to  correct.  The  proportion  be- 
tween the  one,  and  the  other,  will,  by  this  mean,  be  the 
better  preserved ;  the  justice  of  the  punishment  will  be 
the  more  obvious,  both  to  the  criminal  and  the  public, 
springing,  as  it  is  made  to  do,  out  of  the  nature  of  tlie 
offence  j  and  its  effect,  either  as  a  corrective,  or  an  ex- 
ample, will  be  proportionably  more  useful. 

In  reference  to  this  subject,  crimes  may  be  divided 
into  three  principal  classes, — 1,  crimes  against  morals, — 


271 

2,  crimes  against  the  public  tranquility,  which,  however, 
do  not  directly  affect  the  security  of  individuals, — 3, 
and  lastly,  crimes  which  immediately  violate  that  securi- 
ty.— In  this  partition,  I  do  not  include  offences  against 
religion  simply  ;  that  is,  for  denying  its  doctrines,  or  dis- 
senting from  the  ritual  of  its  worship.  For,  although 
most  nations  have  interfered  imprudently,  and  often 
iniquitously,  with  the  rights  of  religious  opinion,  and 
worship,  they  are  not  properly  objects  of  civil  jurisdic- 
tion ;  but,  relating  wholly  to  spiritual  ideas,  and  men's 
spiritual  concerns,  they  should  be  left  to  the  moral  and 
corrective  discipline  of  the  respective  religious  societies. 
But  it  should  be  carefully  borne  in  mind,  that  this  prin- 
ciple does  not  exempt  from  adequate,  and  severe  repre- 
hension, all  attempts  made  by  profligate  persons,  or  en- 
thusiastic sects,  to  restrain  the  freedom  of  religious 
opinion,  or  to  disturb  the  order  of  religious  devotion 
among  any  denomination  of  men  who  profess  to  be  em- 
ployed in  the  worship  of  Almighty  God.  Such  acts  are 
crimes  against  the  public  tranquility,  and  the  security  of 
the  citizen,  and,  as  such,  they  are  proper  subjects  of  civil 
pains.  At  the  same  time,  no  pretence  of  religious  wor- 
ship shall  ever  be  admitted  as  a  justifiable  plea  to  cover 
any  illegal,  or  immoral  act  from  the  penalty  of  the  law. 

Crimes  against  morals,  restricting  this  definition  mere- 
ly to  those  immoralities  which  are  not  accompanied  with 


272 

any  acts  of  violence,  or  injury  to  others,  may  be  punished 
by  disgrace,  by  fines,  and,  perhaps,  in  some  instances,  by 
confinement  and  labor. 

Crimes  against  public  tranquility  may  be  chastised  by 
imprisonment,  solitude,  exile,  confiscation  ;  and  by  all 
such  correctives  as  are  fitted  to  subdue,  and  tame  restless 
and  turbulent  spirits. — But,  on  this  subject,  it  is  worthy 
of  remark,  that  a  great  error  is  often  committed  in  the 
punishment  of  seditious  and  libellous  writings.  Writings 
of  this  nature  are  generally  grateful  to  the  populace  ; 
and  there  is,  commonly  at  least,  a  party  in  the  state  who 
are  ready  to  applaud  them,  and  to  receive  their  authors 
with  favor.  To  raise  them  to  pillories,  therefore,  and  to 
other  public  situations  of  disgrace,  is  essentially  defeat- 
ing the  end  of  correction.  It  attracts  the  sympathy,  and 
excites  the  attachment  of  their  partizans  :  and  the  suffer- 
ers are  more  gratified  by  the  testimonies  of  the  public 
applause  which  surround  them,  than  mortified  by  the 
stigma  attempted  to  be  inflicted  by  the  law.  The  laws, 
and  the  magistrates,  are  both,  by  this  means,  exposed  to 
insult  and  contempt. 

The  penalties  of  crimes,  in  like  manner,  which  violate 
the  security  of  the  citizen  in  his  person,  or  his  property, 
may  be  drawn  from  the  nature  of  (he  offence.  They  are 
a  kind  of  retaliation  by  which  society  requires  damage*, 


273 

or  injuries  which  have  been  (lone  to  a  fellow-citizen,  to 
be  compensated  by  some  equivalent ;  or  they  result  from 
an  act  of  the  society  by  which  it  refuses  security  and 
protection  to  those  who  have  violated  the  security  which 
the  law  would  extend  to  every  member  of  the  community. 

The  lex  talionis  of  the  Mosaic  code,  appears,  on  many 
subjects,  to  be  such  an  obvious  measure  of  equity,  that  it 
seems  wonderful  that  it  should  not  have  been  more  intro- 
duced into  the  jurisprudence  of  christian  nations.  Some 
of  the  pains  naturally  arising  from  this  rule,  might,  no 
doubt,  be  frequently  commuted  with  advantage  by  con- 
sent of  the  injured  party.  For  example,  the  loss  of  a 
member,  by  which  a  poor  man  had  been  enabled  to  pro- 
cure his  subsistence,  might  be  commuted  for  an  annuity, 
which  might  secure  to  him,  during  life,  a  sufficient,  and 
liberal  provision. 

Or  THE  MULTIPLICITY  OF  CAPITAL  PUNISHMENTS. 

It  argues  some  defect  of  wisdom,  and  good  policy,  in  a 
state,  when  its  jurisprudence  is  burdened  with  many  capi- 
tal offences.  There  is  great  risk  that  the  government 
become  hateful  to  the  humanity  of  the  people.  Or  another 
risk,  perhaps  not  less  injurious  to  society,  is,  lest  the 
public  compassion  be  so  much  interested  for  the  crimi- 
nals that   many   of  them  shall  be  suffered  to  escape. 

Every  criminal  that  escapes  the  penalty  of  the  law  forms 
vol.  ii.  Mm 


274 

&  new  encouragement  to  crimes.  The  execution  of  the 
law,  in  time,  becomes  a  lottery,  in  which  every  culprit  is 
prone  to  count  the  chances  in  his  own  favor.  Almost 
every  nation,  in  the  very  early  stages  of  her  career  to- 
wards civilization,  finds  it  necessary  to  infuse  great 
severity  into  her  penal  code  in  order  to  repress  the  rude 
passions  of  men  not  yet  softened  by  literature  and  the 
arts ;  but  if  the  same  severity  be  retained  in  her  laws 
after  she  has  attained  a  high  degree  of  refinement  in  her 
sentiments  and  manners,  it  is  requisite,  for  the  sake  of 
humanity,  that  a  power  of  reprieve  be  lodged  in  some  de- 
partment of  the  government,  capable  of  exercising  it  with 
a  wise  discretion.  But  perhaps  the  wisest  policy  is  to 
make  few  offences  capital,  and  then  the  law  inexorable. 

OF  THE  ENDS  OF  FUNISHMENT. 

The  penalties  of  the  law,  it  is  said,  have,  besides  repa* 
ration  to  the  sufferers  by  crimes,  two  ends  in  view,  cor- 
rection and  example.  The  latter  purpose  alone  can  be 
served  by  capital  punishments.  Correction  is  most  effec- 
tually promoted  by  solitary  confinement ;  especially  if 
combined  with  constant  labor  in  some  industrious  profes- 
sion. A  vicious  man  can  ill  bear  reflection  on  himself  : 
and  the  reflections  of  solitude  have  often  been  found  the 
most  powerful  means  of  reformation.  On  the  other  hand, 
public  disgrace  only  hardens  guilt,  and  renders  villainy 
but  the  more  incurable. 


275 
OF  SANGUINiJIY  PUNISHMENTS. 

Civil  society  was  not  instituted  for  the  purpose  of  ex= 
ereising  an  atrocious  vengeance  on  those  unhappy  men 
who  are  so  thoughtless,  or  so  wicked,  as  to  disturb  its 
peace.  The  greatness  and  strength  of  the  nation  should 
render  it  superior  to  cruelty  in  the  administration  of  its 
laws,  which  is  the  property  only  of  weakness,  and  the 
uncertain  possession  of  power.  But  in  a  republic,  san- 
guinary punishments  are  peculiarly  dangerous.  They  dc 
inonstrate,  and  they  hasten  the  decay  of  the  public  virtue, 
which  is  the  only  secure  foundation  of  the  public  pros- 
perity. If  ever  the  state  is  obliged  to  resort  to  severity, 
as  may  sometimes  be  the  case  in  tumultuary  seasons  of 
insurrection,  and  treason,  as  few  victims  as  possible 
should  be  subjected  to  the  axe  of  the  law  ;  and  the  re- 
public should  immediately  return  to  her  usual  mildness 
and  lenity. — The  extent,  and  severity  of  the  proscriptions 
of  Sylla,  though  made  in  the  name  of  the  public  good, 
and  directed  principally  against  a  low  and  turbulent  fac^ 
tioo,  hastened  the  ruin  of  Roman  liberty. 


276 
LECTURE  XXVI. 

OF  POLITICS. 
CONTENTS. 

Of  the  general  principles  of  government  relating  to  the 
constitution  of  states.— The  same  form  of  government 
not  calculated  for  every  nation — Of  the  different  forms 
of  government,  and  the  springs  of  their  action — Of 
laivs  relative  to  the  constitution  of  the  government — Of 
laws  relative  to  despotism— to  monarchy — Of  the  body 
of  nobility  in  a  monarchy — Of  the  judiciary  body. — 
Of  the  nobles  in  an  aristocracy — Of  a  permanent  ma- 
gistracy in  that  government  invested  with  extraordina- 
ry powers,  to  detect  and  restrain  the  ambitious  projects 
of  the  nobles — Jtft  excellent  arislocratical  institution — 
Of  laivs  relative  to  a  democracy — Of  the  classification 
of  the  citizens  by  Servius  Tullus,  and  by  Solon — Of  a 
senate  as  a  preparatory  council ;  or  as  an  integral  part 
of  the  political  constitution — The  question,  whether  a 
democracy  ought  to  be  simple  or  representative? — If 
representative,  whether  the  popular  suffrage  ought  to  be 
universal,  or  limited? — Of  limitation  to  the  possession 
of  real  estate — Of  regulating  the  times,  places,  and 
manner  of  voting — Whether  the  votes  ought  to  be  given 

oj2nl  y  or  by  ballot  ? 


277 

THE  next  branch  of  the  philosophy  of  legislation 
which  presents  itself  to  onr  consideration,  comprehends 
those  general  principles  of  government  which  relate  to 
the  constitution  of  states,  and  to  the  great  objects  of  na- 
tional policy,  such  as  taxation,  population,  revenue,  and 
commerce,  constituting  peculiarly  the  science  of  politics; 
or  of  the  forms,  and  regulations  of  the  civil  communities 
of  mankind. 

When  Solon  was  asked  if  he  had  given  the  Athenians 
the  best  civil  institutions,  he  replied,  that  he  had  given 
them  the  best  they  were  able  to  bear.  This  answer  points  to 
a  principle  which  lies  at  the  foundation  of  political  sci- 
ence ;  that  the  forms  of  civil  government  ought  to  be 
varied  according  to  the  character  and  manners  of  the 
people  for  whom  they  are  designed,  as  well  as  according 
to  all  those  exterior  circumstances  of  climate,  or  geo- 
graphical description,  such  as  waters,  mountains,  plains, 
&c.  which  have  any  influence  upon  the  occupations, 
habits,  and  spirit  of  the  country.  It  results  hence,  that 
no  single  form  of  government  is  to  be  considered  as  ab- 
solutely, and  universally  best :  but  the  perfection  of  any 
civil  institution  is  wholly  a  relative  idea  to  the  state  of 
the  nation  to  which  it  is  adapted.  A  wise  policy  must 
have  relation  to  so  many  circumstances  both  in  the  inte- 
rior, and  external  state  of  the  people  to  be  regulated  bj 


278 

%  that  those  forms  Avhieh  might  be  evidently  best  for  one 
aation,  may  be  among  the  worst  for  another. 

Yet  there  can  be  no  doubt  that  there  are  some  political 
institutions*  where  they  can  be  prudently  adopted,  which 
are  more  favorable  than  others  to  equal  liberty,  to  all  the 
great,  or  useful  exertions  of  the  human  faculties,  and  to 
the  happiness  of  the  citizen.  Fortunate  it  is  for  any  peo- 
ple, when  their  previous  state  has  prepared  them  to  re- 
ceive such  forms  of  government  as  have  been  constructed 
on  principles  of  the  soundest  political  reason ;  or  when? 
like  Lycurgus,  the  talents  of  a  legislator  have  been  able 
to  accommodate  to  his  intended  institutions  the  habits^ 
maimers,  and  sentiments  of  a  whole  nation. 

I  purpose,  in  the  first  place,  to  make  a  few  observa- 
tions on  the  principal  forms  of  civil  government  which 
have  existed  among  mankind,  and  on  the  springs  of  ac- 
tion, respectively,  which  govern  their  operations.  I  shall 
afterwards  point  out  some  of  the  great  objects  of  national 
policy  which  its  legislators  ought  profoundly  to  under- 
stand, in  order  that  they  may  be  able,  with  the  greatest 
success,  to  promote  the  public  interests  entrusted  to  their 
vigilance  and  wisdom. 

O-F   THE  DIFFERENT    FORMS  OF    GOVERNMENT,    AND  THE 
SPRINGS  OF  THEIR  ACTION. 

The  different  simple  forms  of  political  institution, 
which  have  existed  in  the  world,  out  of  which  all  others 


Lave  been  compounded,  are,  as  has  been  mentioned  ii^* 
former  lecture,  despotism,  civilized  monarchy,  aristocra- 
cy, and  democracy.  The  principal  features  which  dis- 
criminate these  forms  of  government  from  one  another, 
were  then  pointed  out.  I  shall,  at  present,  only  add  a  few 
remarks  on  the  different  springs  by  which  the  operations 
of  these  governments  are  respectively  actuated. 

A  great  writer,  whose  opinions  have  received  almost 
the  authority  of  axioms  in  political  science,  has  reduced 
these  springs  to  four,  fear,  honor,  moderation,  and  virtue. 
In  a  despotism,  fear  of  the  despot,  or  a  dismaying  ap- 
prehension of  his  power,  and  his  passions,  is  the  principle 
of  obedience  in  every  order  of  the  state,  from  his  minis- 
ters, down  to  the  lowest  of  his  people,  who  are  all  equally 
his  slaves.~In  a  monarchy,  a  certain  love  of  distinction 
attaches  his  subjects  to  the  prince,  who  is  the  fountain  of 
honor ;  and,  by  creating  a  universal  zeal  to  serve  him,  be- 
comes the  actuating  spirit  of  the  government.    Honor  is 
an  ennobling  principle,  which  often  elevates  the  mind  to 
great  and  beneficial  enterprize,  and  infuses  into  the  char- 
acter of  a  nation  a  high  portion  of  energy,  in  the  culti- 
vation of  the  arts,  as  well  as  of  war.   Its  sentiments  are  not 
always  coincident  with  the  dictates  of  the  moral  faculty  ; 
yet  are  they  found,  in  many  instances,  useful  auxiliaries 
to  virtue.   Honor,  although  supremely  devoted  to  the  ser- 
vice of  the  prince,  forms  to  itself  laws  which  the  prince 


280 

I1' '  nself  cannot  violate.  No  authority  can  oblige  a  man  of 
honor  to  commit  an  action  which,  by  these  laws,  is  held 
to  be  dishonorable,  or  unworthy  his  rank  and  station.  la 
this  view,  it  is  a  principle  of  political  action  infinitely  su- 
perior to  the  servile  fear  of  despotic  states.  For,  although 
many  of  its  rules  are  capricious,  and  admit  of  a  union  of 
its  generous  qualities  with  vices  of  a  particular  descrip- 
tion, yet  they  always  aim  at  a  certain  pitch  of  morals, 
and  are  generally  favorable  to  a  certain  degree  of  civil 
liberty  in  the  government. 

In  those  states  in  which  the  supreme  power  is  lodged  in 
the  body  of  the  people,  the  principle  of  the  government  is 
said,  by  the  same  great  political  writer,  to  be  virtue. 
This  principle,  as  it  is  explained  by  him,  is  the  general 
preference  of  the  public,  to  private  interest.  And,  united 
with  this,  it  involves  the  love,  and  strong  attachment  of 
the  people  to  the  democracy  itself,  as  being  the  form  of 
government  best  calculated  to  promote  the  public  good, 
and  most  friendly  to  public  morals.  It  is  justly  denomina- 
ted virtue  j  not  only  because  genuine  public  spirit  is  itself 
one  of  the  chief  virtues,  but  is  intimately  associated  with 
frugality,  temperance,  justice,  piety,  respect  for  religion, 
and  all  those  noble  qualities,  most  immediately  related  to 
the  great  interests  of  the  community.  When  these  decline, 
public  spirit  speedily  follows  the  declension,  and  the  na- 
tional glory  and  happiness  sink  with  them. 


281 

In  aristocracies  a  degree  of  public  virtue  may  exist ; 
but  it  is  rather  the  love  of  the  aristocracy,  than  of  the 
people.  A  high  spirit  of  virtue,  such  as  has  been  before 
described,  can  hardly  subsist,  or  be  of  long  duration  in 
those  states  in  which  the  ranks  and  fortunes  of  men  are 
so  extremely  unequal.  The  nobles  will  be  haughty,  and 
the  people  envious.  Equal  civil  rights  are  not  known  in 
such  a  government.  The  establishment  of  the  privileges 
of  the  people  would  be  regarded  as  inconsistent  with  the 
prerogatives  of  the  nobility.  Even  the  prosperity  of  that 
humiliated  body  is  apt  to  be  considered  as  obnoxious  to 
the  dignity,  and  dangerous  to  the  security  of  their  lords. 
Such  a  people  will  seldom  be  heartily  attached  to  a  gov- 
ernment in  which  they  are  almost  annihilated ;  and  they 
have  continually  before  their  eyes  petty  princes,  but  little 
elevated  above  themselves,  who,  yet,  are  their  absolute 
masters.  The  highest  virtue,  therefore,  which  can  be  ex- 
pected in  this  form  of  constitution,  and  which,  indeed,  is 
necessary  to  render  it  tolerable,  is  mutual  relaxation  in 
the  spirit  and  claims  on  each  side,  in  these  great  parties. 
The  people  will  more  easily  be  brought  into  this  temper 
when  they  find  a  spirit  of  moderation  prevailing  among 
the  nobles. 

It  is  natural  for  the  lower  class  to  look  for  this  exam- 
ple first  among  their  superiors.   This  condescension  is 
vol.  ii.  n  n 


282 

becoming  their  rank,  and  the  refinements  of  their  educa- 
tion. Moderation,  therefore,  of  the  nobility  among  them- 
selves, in  the  arrogance  of  their  spirit ;  and  towards  their 
inferiors  in  the  insolence  of  their  claims,  is  the  proper 
spring  of  this  government. 

"When  a  legislator  has  conceived  the  idea  of  his  consti- 
tution, and  of  the  spring  by  which  it  is  to  be  set  in  mo- 
tion, the  whole  system  of  his  laws  will,  of  course,  be  mod- 
elled according  to  these  principles. 

OF  LAWS  RELATIVE  TO  THE  CONSTITUTION. 

The  first  class  of  laws  is  of  those  which  define  and 
establish  the  form  of  government,  and  compose  the  co?i- 
stitution  of  the  state.  In  a  constitution  in  which  any  se- 
cure provision  is  made  for  the  happiness,  or  the  liberties 
of  the  people,  its  boundaries  ought  to  be  fixed  with  pre- 
cision, and  its  powers,  accurately  defined  and  distributed, 
that  there  may  be  no  doubt  in  the  rulers  with  respect  to 
their  authority,  nor  in  the  people  with  respect  to  their 
privileges  ;  and  that  the  authority,  and  duties  of  one  branch 
of  the  magistracy  may  not  clash,  or  interfere  with  those 
of  another. 

Or  LAW  S  RELATIVE  TO  MONARCHY. 

The  fundamental  laws  of  monarchy,  are  those  which 
vest  the  supreme  authority  in  the  prince,  and  establish 


283 

his  prerogative.  Thus  far  they  agree  with  the  principle 
of  a  despotic  state.  But  in  order  to  mingle  a  portion  of 
liberty  in  the  constitution,  which  is  essential  to  a  civilized 
monarchy,  but  is  excluded  under  a  despotism,  it  is  neces- 
sary that  there  should  exist  in  the  state  an  intermediate 
hody  between  the  prince  and  the  people,  possessed  of  pri- 
vileges and  powers  independent  on  the  will  of  the  sove- 
reign. Their  dignity,  and  the  decided  weight  of  influence, 
attached  to  hereditary  rank  and  wealth,  will  concur  to 
impose  no  inconsiderable  check  upon  arbitrary  power. 
The  laws,  therefore,  which  ascertain,  and  fix  the  privi- 
leges of  the  elass  of  the  nobles,  are,  likewise,  funda- 
mental to  this  constitution. 

A  distinction  of  great  importance  between  a  despotism 
and  civilized  monarchy  is,  that  the  latter  enjoys  known, 
written,  and  fixed  laws ;  under  the  former,  the  will  of 
the  sovereign  is  the  law.  A  despotic  state,  therefore, 
can  hardly  be  said  to  enjoy  a  constitution.  Its  powers  and 
privileges  are  all  thrown  into  one  mass,  and  absorbed  by 
the  throne. 

In  order  that  the  law  may  be  rendered  fixed  in  a  mon- 
archy, and  freed  from  the  variableness  and  uncertainty 
of  the  prince's  humor  and  will,  it  is  of  high  importance 
there  should  be  established  a  body  of  men,  distinguished 
for  integrity,   and  knowledge,  such  as  existed  iu  France 


2S-i 

previous  to  the  late  revolution,  who  may  be  the  interpre- 
ters, and,  in  some  measure,  the  fountain  of  the  laws,— » 
whose  office  it  shall  be  to  give  form  to  the  civil  code, — to 
expunge  from  it  those  laws  which  are  no  longer  proper,—, 
to  revive  those  which  are  obsolete,  but  useful,— to  pro- 
pose to  the  prince  new  ones  for  his  adoption,  which  may 
be  conducive  to  the  benefit  of  the  state,  and  to  prevent  the 
introduction  of  such  as  are  contradictory  to  the  establish- 
ed code,  or  inconsistent  with  the  ancient  privileges  of 
any  order  of  the  monarchy.   Another  fundamental  insti- 
tution, therefore,  in  this  form  of  government,  is  the  es- 
tablishment of  such  a  depository  of  the  laws.   Happy  is  it 
for  the  state,  when  either  accident,  or  political  wisdom, 
and  foresight,  has  been  able  to  fix  this  body  in  such  a 
manner  as  to  contribute  to  the  freedom  and  security  of 
the  citizen.   The  nobility  are  generally  too  indolent,  and 
too  ignorant  of  law,  for  a  trust  of  this  nature.   A  body  ap- 
pointed by  the  monarch,  and  wholly  dependent  on  the  in- 
fluence of  the  crown,  would  be  still  less  fitted  for  the  task. 
It  would  be,  in  effect,  making  the  will  of  the  prince  the 
law.   The  best  depository,  says  the  author  of  the  spirit  of 
laws,  is  a  body  of  men  taken  from  the  midst  of  the  people, 
but  advanced,  by  their  office,  to  a  middle  rank  between 
the  nobility  and  the  inferior  orders  of  the  state. 

A  portion  of  liberty  may  be  introduced  into  this  govern- 
ment by  the  manner  of  creating  and  modelling  the  ordi* 


285 

nary  courts  of  justice.  The  fundamental  institutions  of 
the  monarchy  ought  to  render  the  tribunals  as  independ- 
ent as  the  nature  of  the  government  will  permit.  Fixed 
laws,  and  independent  judges,  will  create  an  idea  of  secu- 
rity in  the  citizens  for  their  persons,  and  property,  and,  in 
so  far,  a  sense  of  liberty,  under  the  most  arbitrary  consti- 
tution of  civil  policy. 

Above  all,  it  should  be  an  invariable  maxim  of  the  state, 
that  this  administration  of  the  laws  be  not  retained  in 
the  hands  of  the  prince,  nor  committed  to  his  courtiers, 
who  are  but  the  minions  of  his  power  and  will.  This  or- 
ganization of  the  tribunals  would  justly  render  the  mon- 
arch formidable  to  his  subjects  ;  whereas  it  is  of  supreme 
importance  to  his  interest,  and  his  happiness,  to  acquire 
their  confidence  and  love,  by  keeping  his  power  out  of 
their  view. 

Why,  it  may  be  asked,  do  we  speak  of  fixed  laws  and 
fundamental  institutions  in  a  monarchy,  in  which  the 
power  of  the  prince  is  supreme  ? — Tt  knows  no  eifectual 
limits,  it  is  said,  but  those  which  it  is  pleased  to  prescribe 
to  itself. — Be  it  so. — But  those  limits,  being  once  estab- 
lished, acquire,  by  time,  great  strength  in  the  opinions  of 
the  people,  and  in  the  ideas  of  the  prince  himself.  And 
he  cannot,  afterwards,  easily  or  safely  violate  them,  even 
if  lie  were  tyrannically  inclined.    Manners,  customs,  an- 


286 

eient  usages,  become  so  incorporated  into  the  state,  and 
manner  of  thinking  of  a  people,  especially,  if  they  have 
been  accustomed  to  enjoy  any  portion  of  liberty  of  thought 
and  action,  that  it  is  hazardous  to  infringe  them.  And 
when  they  are  supported  by  the  opulence,  and  influence  of 
a  powerful  nobility,  they  acquire  such  stability,  as  justly 
to  entitle  them  to  the  name  of  laivs.  They  are  not  mere 
forms  to  cover  the  horrors  of  despotic  power  ',  but  afford 
real  and  substantial  grounds  on  which  the  subject  may 
rest  the  foundation  of  his  property,  and  his  sense  of  per- 
sonal security. 

OF  LAWS  RELATIVE  TO  ARISTOCRACY. 

In  an  aristocracy,  the  first  order  of  laws  is  of  those  which 
ascertain  the  body  of  the  nobility  ;  thereby  defining  those- 
who  have  a  right  to  be  rulers,  and  those  who  must  ne- 
cessarily be  subjects. 

It  is  a  pernicious  aristocratical  institution  which  per- 
mits all  the  nobles,  in  right  of  their  birth,  to  be  legisla- 
tors and  magistrates.  The  oppression  of  the  people  then 
becomes  extreme.  On  the  other  hand,  when  only  a  small 
part  of  their  body  can,  at  any  one  period,  be  raised  to  the 
senate,  the  selection  affords  a  much  fairer  prospect  that 
the  government  will  be  managed  with  equity,  and  a  libe- 
ral regard  to  the  natural  rights  of  the  people.  For,  by 
this  means,  becoming,  in  their  turn,  subjects  of  the  laws, 


287 

their  own  condition  is,  in  some  measure,  assimilated  to 
that  of  the  mass  of  the  community.  A  sympathy  with  the 
lower  orders,  will  he  created  by  their  own  experience, 
which  will  naturally  be  productive  of  greater  mildness, 
and  humanity  in  the  administration  of  the  powers  of  gov- 
ernment. And  it  should  be  received  as  an  axiomatic  prin- 
ciple in  that  form  of  civil  policy,  that,  the  greater  the  dis- 
proportion is  between  the  numbers  of  the  senate,  and  the 
whole  body  of  the  nobles,  the  greater  will  be  the  free- 
dom, and  the  happiness  of  the  people. 

The  institution  is  the  best  possible,  when  the  people, 
as  well  as  the  nobles,  partake  in  the  election  of  the  senate, 
and  the  magistrates. 

The  necessity  of  controlling  the  amjbition  of  the  noble 
families,  and  of  early  detecting  and  punishing  conspiracies 
against  the  state,  which  are  more  frequent  and  formida- 
ble in  this  form  of  government  than  in  most  others,  re- 
quires a  body  of  magistracy  for  the  purpose  to  be  estab- 
lished by  the  fundamental  laws  of  the  republic.  In  the 
exercise  of  this  authority  against  powerful  nobles,  it  is 
necessary  that  these  magistrates  be  invested  with  such 
great,  and  discretionary  powers  as,  in  their  operation, 
may  sometimes  prove  tyrannical.  Without  such  high 
and  uncontrollable  authority,  the  institution  of  the  cen- 
sors at  Rome,  of  the  ephori  at  Sparta,  and  the  state  in- 


288 

quisitors  at  Venice,  could  not  effect  the  purpose  of  their 
institution  against  such  great  criminals. 

There  may  sometimes  exist  particular  crises  of  public 
clanger  in  democratic  republics,  in  which  it  may  be  re- 
quisite, for  the  general  safety,  to  invest  an  individual  cit- 
izen with  unlimited  powers,  like  those  conferred  on  the 
dictators  at  Rome.  The  duration  of  these  powers,  how- 
ever, being  limited  to  a  very  short  period,  the  govern- 
ment soon  returns  to  its  regular,  and  accustomed  chan- 
nels. But,  in  aristocracies,  the  ambition  and  pride  of  the 
great  families  often  render  their  passions,  enterprizes, 
and  factious  pursuits,  hereditary,  and  perpetual.  To 
check  an  evil  attended  with  such  continual  danger  to  the 
state,  she  is  obliged  to  have  recourse  to  a  perpetual  ma- 
gistracy. The  great  {wealth,  and  powerful  influence  of 
the  nobility  tends  to  make  them  haughty,  obstinate,  and 
intractable.  It  is  dangerous  to  become  their  aceuser. 
And  the  ordinary  tribunals  are  too  weak  to  punish  them. 
This  magistracy,  therefore,  should  be  able  to  avail  itself 
of  secret  means  of  information ;  nor  should  it  be  fettered 
in  its  judgments  by  tedious  forms,  and  delays,  but  have  it 
in  its  power,  by  the  promptness,  and  severity  of  its  pun- 
ishments, to  apply  a  cure  to  this  inherent  vice  of  the  con- 
stitution. 

As  the  great  distinctions  of  wealth,  with  the  almost 
exclusive  means  of  acquiring  it,  possessed  by  the  scnato- 


289 

rian  order,  above  the  common  mass  of  the  people,  are  the 
sources  of  the  principal  disorders  of  this  state,  it  is  of 
importance  that  the  laws  should  apply  some  palliatives  to 
the  evil,  which,  because  it  is  too  inveterate  to  be  directly 
attacked,  or  entirely  extirpated,  may  be  hoped,  in  time, 
by  a  silent  and  imperceptible  progress,  to  relieve  some 
of  its  worst  effects.  Accordingly,  Montesquieu  remarks, 
that  it  would  be  a  good  aristocratical  institution,  to  make 
a  certain  degree  of  wealth,  acquired  by  a  commoner, 
confer  nobility  ;  and,  at  the  same  time,  to  preclude  the 
nobles  from  commercial  pursuits.  For,  when  they  are 
permitted  to  become  merchants,  their  rank,  and  opulence 
forms  an  almost  exclusive  monopoly  in  their  favor  ;  aud 
a  vulgar  citizen,  embarked  in  trade,  must  enter  into  a 
most  unequal  competition  with  them.  It  is  of  use,  by  such 
regulations,  at  once  to  restrain  the  cupidity  of  the  higher 
orders  of  the  state,  and  to  open  to  the  people  a  prospect 
of  rising,  by  their  industry,  above  their  original  rank. 

But,  perhaps,  one  of  the  most  effectual,  and,  at  the 
same  time,  least  invidious  checks  to  the  accumulation  of 
exorbitant  wealth  in  one  family,  and  the  arrogant  preten- 
sions to  which  it  is  apt  to  give  rise,  is  the  posthumous  di- 
vision of  great  estates  according  to  some  legal  and  equit- 
able rule,  prescribed  by  the  legislator.  This  may  be  ac- 
complished, partly  by  the  prudent  regulations  of  the  law 

vol.  ii.  o  o 


290 

concerning  inheritances,  and  testamentary  settlements  ', 
and  partly  by  custom,  over  whieh  the  ideas  of  the  law 
possess,  in  time,  an  important  influence. 

OF  XAWS  RELATIVE  TO  DEMOCRACY. 

In  a  Democracy  the  people  frame  the  laws  by  which 
the}'  themselves  are  to  be  governed.  In  a  constitution  of 
this  kind,  in  which  the  people,  in  person,  are  to  deliberate 
and  decide,  and  perform  all  the  functions  of  legislation, 
as  was  the  casein  most  of  the  ancient  republics,  the  fun- 
damental institutions  of  the  state  should  secure  to  the 
body  of  the  citizens  the  right  of  deliberating,  and  voting  ; 
and  particularly  define  the  manner  in  which  this  right 
shall  be  exercised.  The  constitution  should  point  out  the 
authority  by  which  the  public  assemblies  shall  be  called, 
— the  times  and  places  of  their  convening, — the  order  to 
be  observed  in  them, — and  the  manner  in  which  all  ques- 
tions shall  be  proposed,  and  issued.  As  this  is  the  way  in 
which  the  people,  in  whom  all  power  resides,  exercise 
their  sovereignty,  the  right  cannot  be  too  strongly  as- 
serted, nor  the  mode  of  exercising  it  too  clearly  defined. 

As  large  assemblies  of  the  people,  the  mass  of  whom 
are  ignorant  and  turbulent,  are  liable  to  be  inflamed  by 
the  address  and  arts  of  factious  orators,  and  hurried,  by 
momentary  impulses,  into  measures  unjust,  cruel,  and 
contrary  to  their  own  interests,  the  ancient  legislators 


•  291 

endeavored,  as  far  as  possible,  to  prevent  these  tumult ua* 
ry  movements,  by  the  peculiar  order  introduced  into  the 
elections.  The  famous  division  of  the  Roman  people  into 
six  classes,  made  by  Servius  Tullus  for  this  purpose,  is 
so  well  known  as  to  need  no  illustration.  By  this  politi- 
cal arrangement  none  of  the  citizens  were  deprived  of 
their  rights  of  suffrage  ;  but  they  were  so  artificially  dis- 
posed, that  property,  and  information  must  generally 
prevail  over  ignorance,  and  poverty.  The  Athenians 
were  divided  by  Solon  into  four  classes,  according  to  their 
property ;  one  object  of  which  division  was  to  limit  the 
eligibility  of  citizens  to  offices  which  required  informa- 
tion, or  involved  any  important  public  trust ;  while  the 
elective  franchise  was  sacredly  preserved  to  every  citizen. 
It  was  a  principle  with  Solon  that  citizens,  of  the  lowest 
grade  in  the  republic,  may,  from  public  fame,  or  their 
own  observation  of  the  actions  of  their  fellow-citizens,  be 
able  to  chuse  a  magistrate,  although  they  are  wholly  un- 
qualified to  discharge  the  functions  of  the  magistracy. 
In  consequence  of  this  principle,  he  ordained  that  the 
public  magistrates  should  be  eligible  out  of  the  three 
former  classes  only  j  but  judges  in  legal  trials,  an  order 
equivalent  to  our  juries,  might  be  chosen  out  of  the  last 
of  the  four  classes,  comprehending  that  numerous  body 
who  were  destitute  of  real  property. 


292  • 

In  a  simple  democracy,  in  which  the  people  decide  all 
things  in  person,  a  senate  to  digest  and  prepare  the  busi- 
ness for  the  public  assemblies  is  an  institution  of  singular 
utility.  It  often  prevents  the  precipitancy  and  rashness 
to  which  such  assemblies  are  prone,  when  the  introduc- 
tion of  business  to  their  deliberation  is  left  to  accident,  or 
the  caprice  of  individuals,  and  its  decision  to  the  heated 
impulse  of  the  moment.  It  imposes  some  check  on  the 
dangerous  arts  of  demagogues,  whose  success  depends 
upon  being  able  to  inflame  the  passions  of  the  populace, 
and  often  on  taking  them  by  surprize. 

The  institutions  which  have  been  just  named,  of  the 
classification  of  the  citizens,  and  of  a  senate  of  previous 
deliberation,  are  superfluous  in  republics  where  the  people 
do  not  discuss  their  political  questions,  and  make  their 
legislative  decisions  in  the  general  assembly,  but  by  their 
representatives.  A  representative  body  will  usually  pos- 
sess more  temper  and  wisdom,  than  any  unpurified,  popu- 
lar mass.  Still,  however,  a  senate,  not  as  a  preparatory 
organ,  but  as  an  integral  part  of  the  legislature,  is  useful, 
and  perhaps  necessary  in  every  wise,  and  well-ordered 
government.  A  single  body  of  legislators,  especially  if 
it  be  numerous,  and  act  without  having  its  measures 
subject  to  revision,  is  often  liable  to  the  influence  of  pop- 
ular passions,  to  sudden  impulses,  and  to  factious  intrigue. 
A  senate,  as  a  second  branch  in  the  legislature,  is  ealcu- 


293 

lated  in  a  great  degree  to  prevent,  or  correct  those  evils, 
not  only  by  the  superior  age  which  the  laws  may  require 
in  its  members,  and  by  the  manner  of  its  appointment, 
which  may  be  made  more  favorable  to  the  selection  of  the 
wisdom  and  experience  of  the  nation,  than  can  be  done  in 
popular  elections,  but  simply  by  the  circumstance  of  its 
being  a  separate  body.  The  same  violent  impulse,  or  the 
same  factious  influence  will  probably  seldom  operate  in 
an  equal  degree  upon  both  assemblies  at  the  same  time. 
The  moderation  and  prudence  of  the  one,  when  factions 
do  exist,  will  frequently  restrain  the  impetuosity  and 
rashness  of  the  other.  The  same  men  can  hardly  be  sup- 
posed to  acquire  a  leading  influence  in  both.  And  differ- 
ent leaders,  admitting  that  they  are  equally  governed  by 
ambitious,  or  by  mercenary  views,  will  seldom  find  their 
interests  coincide.  Mutual  opposition  will  therefore  im- 
pose a  powerful,  and  mutual  restraint  on  all  improper  de- 
signs ;  and  hardly  leave  them  any  other  point  of  union  but 
the  public  good. 

"Whether  a  democracy  ought  to  be  simple,  or  represent- 
ative in  its  structure,  w  ill  depend  in  a  great  measure  on  its 
territorial  extent.  If  it  be  confined  to  a^iugle  city,  ami 
its  environs,  we  may  pronounce  it,  as  a  general  rule,  that 
the  government  ought  to  be  simple,  and  the  legislative 
power  be  vested  in  the  general  assembly  of  the  citizens. 
If  it  be  placed  in  a  selected  body  of  representatives,  ex- 


29i 

eept  for  the  general  purpose  of  preparing  business  to  be 
laid  before  the  assembled  citizens,  the  facility  with  which 
a  turbulent  populace  can  be  collected  at  any  time,  by  de- 
signing men  to  dictate  their  imperious  will  on  subjects 
already  submitted  to  the  discussion  of  the  legislature,  will 
give  to  their  irregular  and  violent  meetings  a  decided  in- 
fluence over  every  important  legislative  deliberation.  The 
people,  acting  in  person  in  such  republics,  would  soon  ab- 
sorb into  their  own  assemblies,  all  the  powers  which  they 
had  pretended  to  commit  to  the  assembly  of  their  repre- 
sentatives. Hence  the  little  states  of  Greece  never  re- 
sorted to  the  principle  of  representation,  except  in  their 
confederated  capacity  in  the  council  of  the  amphyctions, 
when  the  fear  of  some  formidable  neighboring  power 
compelled  certain  states  to  enter  into  a  mutual  league  for 
their  common  defence.  For  the  same  reason  we  have 
seen,  during  the  turbulent  period  of  the  revolution  in 
France,  the  national  assembly  of  that  ephemeral  repub- 
lic, so  often  controlled  in  its  deliberations  by  the  mob  of 
Paris. 

It  is  a  political  question  of  no  small  importance,  as  the 
way  in  which  it'shall  be  answered,  may  affect  the  tran- 
quility of  the  state,  and  the  wisdom  of  its  government, — 
whether  the  election  of  the  representatives,  and  of  the  of- 
ficers to  fill  any  magistracy  which  may  be  in  the  gift  of 
the  people,  shall  be  made  by  a  universal,  or  limited  suf- 


295 

frage  ,•  and,  if  limited,  what  shall  be  the  qualifications  of 
the  electors  ? — Universal  suffrage  is  always  dangerous,  at 
least  in  the  course  of  time,  to  the  tranquility  of  the  state, 
and  to  the  prudence  of  its  administration.  The  mass  of 
the  populace  is  necessarily  ignorant ;  and,  through  igno- 
rance, exposed  to  have  their  opinions  easily  misled,  and 
their  passions  inflamed  by  the  insidious  arts,  and  the  vio- 
lent harangues  of  unprincipled  and  ambitious  citizens. 
The  popular  and  fickle  tides  raised  by  these  arts  will 
often  have  an  undue  influence  over  the  opinions  and 
actions  of  their  subservient  representatives.  Either  the 
people  will  chuse  men  who  are  deeply  tinctured  with  their 
own  prejudices,  or  inflamed  with  their  own  passions  ;  or 
the  representative,  who  is  humbly  ambitious  to  gain  their 
precarious  favor,  and  keep  his  place  in  the  government, 
will  be  disposed  tamely  to  yield  his  opinion  to  their  vio- 
lent and  variable  impulse.  The  character  of  the  repre- 
sentative assembly  under  the  influence  of  such  electors 
will  be  gradually  deteriorated,  and  sink,  in  point  of  in- 
formation and  respectability,  towards  the  level  of  their 
uninformed  constituents.  The  probability  of  obtaining  a 
wise,  and  judicious  representation  will  be  much  increas- 
ed by  restricting  the  elective  franchise  by  some  rule  of 
property.  The  restriction  established  in  most  of  the  Uni- 
ted States  to  a  sum  so  small  that  the  poorest  laborer  may 
justly  estimate  the  use  of  his  hands  for  a  few  days,  at  a 


296 

higher  rate,  is,  at  once,  an  acknowledgment  of  the  po- 
litical justice  of  the  principle,  and  an  utter  evasion  of  the 
benefit  which  might  be  derived  from  it.  It  is  obviously 
throwing  open  the  rights  of  suffrage  to  the  broadest  uni- 
versality. The  whole  purpose  of  limiting  these  rights,  if 
it  have  any  meaning,  is  to  place  the  elective  powers  of  the 
community  in  the  hands  of  those  who,  by  their  property, 
have  the  most  ample  means  of  information,  and  the  deep- 
est interest  in  the  public  welfare :  at  the  same  time,  in 
order  to  escape  the  rocks  of  aristocracy,  the  qualifica- 
tions to  entitle  a  citizen  to  vote,  ought  to  be  made  so  lib- 
eral as  to  include  in  the  electoral  class  the  greatest  num- 
bers which  may  be  consistent  with  the  true  interests  of 
the  state.  To  accomplish  this  end,  that  standard  of  pro- 
perty should  be  chosen  which  is  most  visible  and  fixed, 
and,  in  its  nature,  most  intimately  connects  the  interests 
of  the  proprietor  with  those  of  the  republic.  Money  alone, 
or  the  ordinary,  circulating  signs  of  value,  are  so  easily 
transferable  to  any  other  country,  and  are,  besides,  so 
much  out  of  the  view  of  the  public,  and  afford  such  an  un- 
certain ratio  of  wealth,  that  they  seem  to  be  very  unfitly 
chosen  as  the  electoral  criterion.  But  laud  being  the  basis 
of  the  republic,  from  the  products  of  which  the  citizens 
must  necessarily  be  supported,  property  in  the  soil  seems 
the  best  criterion  of  that  active  citizenship  on  which  elec- 
tion and  representation  ought  to  be  founded.    The  rcqui- 


0,  ■> 

297 

sition  of  real  property,  morfever,  lo  enjoy  the  right  of  vo- 
ting lessens  that  vast,  and  indefinite  multitude  which 
would  otherwise  claim  the  franchise,  and  which,  from 
their  numbers,  would  be  so  easily  thrown  into  tumult, 
and  agitated  by  any  dominant  and  popular  passion.  A  Yery 
dense,  and  uninformed  population,  which  possesses  a  share 
in  the  elective  privilege,  will,  on  all  those  occasions  which 
greatly  agitate  the  public  mind,  as  elections  for  the  leg- 
islators  and  governors  of  the  country  always  do,  contain 
in  itself  a  strong  tendency  to  turbulence  and  disorder. 
This  tendency  is  much  restrained  by  a  thin  population  ; 
or,  what  amounts  to  the  same  thing  in  effect,  restricting 
the  number  of  electors,  by  requiring  the  qualification  of 
real  property  to  the  exercise  of  the  franchise.  Hence  it 
is,  that  the  great  political  movements  in  the  United  States 
of  America  have  been  distinguished  by  a  coolness  of  tem- 
per which  has  rarely  been  found,  in  similar  circumstances, 
in  other  countries.  The  sparseness  of  our  population  has 
prevented  that  excitement  to  the  passions  which  is  created 
in  great  assemblies  roused  into  a  ferment  by  the  interests 
of  a  nation.  That  moderation,  which  has  been  so  much 
our  own  boast,  and  the  wonder  of  other  nations,  has  arisen 
principally  from  the  circumstance  just  named,  together 
with  its  natural  consequence,  the  general  political  infor- 
mation of  the  popular  mass.  Time,  and  the  multiplica- 
tion of  our  citizen?,  will  produeea  change,  itistobe  fear- 
vol.  ii.  i'p 


ed,  less  favorable  to  this  peculiar  boast  of  our  country. 
A  selected  electoral  class,  distinguished  by  a  fixed  proper- 
ty in  the  soil,  besides  affording  the  opportunity  of  better 
information  in  that  body,  and  the  certainty  of  a  stronger 
union  of  individual,  with  the  public  interest,  will  contain 
in  itself  a  powerful  principle  of  tranquility  and  modera- 
tion in  all  the  interior  movements  of  the  state,  by  the 
sparseness  of  that  portion  of  the  population  which  pos- 
sesses an  immediate  and  strongly  exciting  connexion  with 
the  government  by  its  elective  franchises.  In  this  res- 
pect the  state  of  Virginia  possesses,  at  present,  the  best 
organized  system  of  any  republic  in  the  American  con- 
federacy. And  it  requires  no  uncommon  political  sagacity 
to  foresee  that  many  of  the  other  states  will,  hereafter, 
regret  the  want  of  a  like  restrictive  qualification  in  their 
electoral  body. 

As  the  sovereignty  of  the  people  in  a  democratical 
form  of  government  is  exercised  by  a  vote,  it  should  be 
among  the  primary  and  fundamental  laws  of  such  a  state 
to  regulate  the  times,  the  places,  and  the  manner  of  giv- 
ing in  their  suffrages. 

On  this  subject,  the  principal  question  among  politi- 
cians has  been,  whether  the  popular  vote  should  be  taken 
openly,  or  by  ballot  ? — Perhaps  all  offices  which  are  in 
the  gift  of  the  people,  whether  legislative   or  executive, 


290 

should  be  conferred  by  open  vote.  With  them  a  degree 
of  intrigue  is  useful;  otherwise,  their  public  affections 
are  prone  to  become  torpid,  and  inactive. 

In  the  legislative  body,  likewise,  all  laws  should  be  en- 
acted by  the  most  open  and  public  vote,  that  the  people 
may  know  in  what  manner  they  are  served.  On  the  other 
hand,  all  offices  bestowed  by  the  legislature  ought  to  be 
given  by  ballot.  A  selected  assembly  like  this,  being 
supposed  to  be  more  capable,  than  the  multitude,  of 
judging  with  candor  and  prudence  of  the  merits  of  differ- 
ent candidates  for  places  of  public  trust,  intrigue  would 
here  be  improper.  Every  legislator,  ought  to  be  most 
free,  and  exempted  from  any  bias,  but  that  created  by 
talents,  and  virtue,  in  exercising  his  judgment. 


300 


LECTURE  XXVII. 


OF    THE    RELATION    OF    A  GOVERNMENT  TO    THE  SPIRIT* 

AND  MANNERS   OF  A  PEOPLE OF   THE    CORRUPTION  OF 

ITS  PRINCIPLE — OF  FRUGALITY,    &C. 

CONTENTS. 

Of  the  spirit  of  a  people,  and  the  relation  which  a  govern- 
ment ought  to  hear  to  it — Of  the  influence  of  laws  to 
effect  a  change  in  the  spirit  and  manners  of  the  people>— 
Of  the  laivs  of  education — Of  the  corruption  of  the  spirit 
of  a  government,  or  the  principle  of  the  constitution — 
Of  the  corruption  of  the  principle  of  monarchy — Of  the 
corruption  of  democracy — Of  frugality,  and  the  means 
of  promoting  it. 

A  VARIETY  of  concurring  circumstances,  con- 
tinuing to  operate  upon  a  nation  for  a  long  time,  contri- 
bute to  form  what  is  called  its  spirit,  and  to  give  a  na- 
tional and  distinctive  character  to  its  manners.  Among 
these  the  peculiar  occupations  of  the  people, — their  pov- 
erty or  wealth, — the  extent  of  the  territory, — the  face 
and  fertility  of  the  country, — the  climate, — proximity  to 
other  nations, — preceding  revolutions  of  government,— 
prevalent  ideas  of  morals,  or  religion  ;  in  a  word,  what- 
ever can  affect  their  external,  or  internal  state,  have  a 


301 

peculiar  influence  on  the  ultimate  effect.  Whenever  a 
nation  has  acquired  fixed  manners  and  customs,  and  a 
distinguishing  character,  and  spirit,  the  government,  and 
the  laws  ought  to  regard  them  with  respect,  and  never  at- 
tempt too  directly  to  contradict  them,  or  too  violently  to 
change  them.  Laws,  otherwise  the  best,  may  become  ty- 
rannical ;  for  that  tyranny  is  no  less  real  which  attempts 
to  control  our  opinions,  or  which  violates  our  manners, 
than  that  which  affects  our  lives,  or  our  property.  The 
efforts  of  legislators,  and  rulers  to  contradict  the  spirit  of 
a  people  have  frequently  been  productive  of  so  many  po- 
litical evils,  that  it  is  eligible  to  submit  to  some  imper- 
fections in  the  government,  rather  than  aim  at  too  great 
theoretic  perfection.  It  is  better  to  bear  with  some  partial 
evils  in  the  laws,  than  to  hazard  a  convulsion  by  attempt- 
ing to  reform  too  much.  This  forms  the  explanation  of 
those  declarations  in  the  sacred  seriptures  in  which  it  is 
said  that  God  permitted  certain  evils  in  the  civil  and  po- 
litical state  of  the  Jewish  nation,  on  account  of  the  hard- 
ness of  their  hearts, — that  is,  the  inveteracy  of  certain 
habits  and  customs  which  civil  rulers  can  seldom  attack 
without  encountering  greater  risks,  or  suffering  greater 
evils  than  would  arise  from  their  continuance.  The  same 
reflection  unfolds,  and  vindicates  the  meaning  of  Moses, 
when,  speaking  in  the  name  of  God,  he  says,  I  have  given 
them  statutes  that  were  not  good,— .though  relatively  wise, 


302 

as  they  respected  the  state,  and  progress  in  civility  and 
manners  of  that  nation,  they  were  not  absolutely  perfect. 
An  example  of  which  imperfection,  that  finds  its  justifi- 
cation in  the  same  principle,  is  seen  in  the  sanguinary 
penal  laws  of  that  great  legislator.  A  people  who  have 
not  made  great  advances  in  the  refinements  of  civiliza- 
tion, who  are  comparatively  rude  in  their  manners,  and 
prompt  to  violence,  require  the  restraints  of  a  severe 
criminal  code.  This  maxim  we  find  verified  in  the  legis- 
lation of  all  nations  in  the  early  periods  of  their  exist- 
ence. A  scale  of  punishments  proportioned  to  the  malig- 
nity of  crimes  is  beyond  the  legislative  philosophy  of  such 
a  people,  except  so  far  as  the  simple  principle  of  retalia- 
tion can  be  applied.  For  a  corrective  code,  they  have 
neither  the  skill  to  frame  one,  nor  the  patience  necessary 
to  carry  it  into  execution. 

The  principle  may  be  still  farther  illustrated  by  a  re- 
ference to  people  of  different  characters  and  pursuits. 
The  laws  adapted  to  a  nation  wholly  devoted  to  the  cul- 
tivation of  the  soil,  would  be  little  lilted  to  another  ex- 
clusively occupied  in  the  adventurous  risks,  and  extensive 
designs  of  commerce.  Israel,  or  Sparta  could  not  have 
prudently  exchanged  their  civil,  or  political  systems  with 
Tyre,  or  with  Rhodes.  Laws  suited  to  French  levity,  and 
vanity,  would  ill  assort  with  Spanish  gravity  and  pride. 
The  institutions  of  Athens  would  have  overturned  Spar- 


303 

ta  ,*  and  an  attempt  to  introduce  the  code  of  Lycurgus  at 
Vlhens  would  have  produced  a  civil  revolution.  In  the 
century  before  the  last,  we  have  seen  England  attempt  to 
establish  a  republic  ;  but  her  manners  were  not  adapted 
to  such  a  change,  and,  after  yielding  for  a  season  to  the 
power  of  a  bold  usurper,  she  was  obliged,  at  last,  to  take 
refuge  again  in  the  monarchy  she  had  thought  to  aban- 
don. It  remains  yet  to  be  proved  whether  the  manners 
and  spirit  of  the  French  nation  can  support  the  democra- 
cy at  which  they  are  aiming ;  or,  whether  they  will  not, 
after  infinite  miseries  and  convulsions,  be  obliged  to  have 
recourse  again  to  their  exiled  nobility,  and  royal  family, 
or  must  have  the  ferocity  of  their  passions  repressed  by 
the  iron  hand  of  some  more  powerful  despot  that  shall 
spring  out  of  the  flames  of  this  volcano.* 

As  laws,  whether  political,  or  civil,  ought  to  be  rela- 
tive, to  a  certain  degree,  to  the  spirit  and  manners  of  a 
nation ;  it  is  sometimes  desirable,  likewise,  to  introduce 
a  gradual  change  into  the  public  manners;  to  which  the 
laws  may  sometimes  be  made  to  operate  by  a  reflex  influ- 
ence.  But,  as  manners,  ancient  customs,  and  habitual 

*  These  lectures  were  prepared  in  the  years  1793 — 4,  and 
the  author  was  stigmatized  by  some  indiscreet  zealots,  for  not 
possessing  that  ardent  spirit  ofliberty  which  couid  entertain  no 
doubt  of  the  success  of  that  extraordinary  revolution  ;  and  that 
the  world  was  unquestionably  going  to  be  regenerated,  in  the 
phrase  of  the  day,  by  the  conciergerie,  and  the  guillotine. 


30* 

ideas  avc  very  precious  to  a  nation,  and  become  intimate- 
ly blended  with  all  their  pleasures,  and  even  with  all  their 
sentiments  of  rectitude  and  morality,  a  law  should  sel- 
dom aim  directly  at  producing  such  an  important  change ; 
but  rather  study  to  attain  its  object  by  an  indirect  influ- 
ence, which,  though  more  tedious  in  its  operation,  will> 
in  the  end,  by  uniting  the  general  opinion  in  its  favor,  be 
more  sure  in  its  effect.  If  a  legislator,  for  example, 
should  wish  to  establish  universal  liberty  in  a  country  in 
which  domestic  slavery  at  present  exists,  a  direct  law  for 
that  purpose  would  probably  produce  a  convulsion  in  the 
state,  and  overturn  the  authority  of  the  government. 
Whereas  the  same  end  might,  perhaps,  be  more  effectu- 
ally accomplished  in  the  progress  of  time,  by  encouraging 
the  humanity  of  individuals,  under  such  restrictions  as 
the  safety  of  the  state  might  require,  to  emancipate  their 
slaves,  till  example  should,  at  length,  grow  into  custom  ; 
or,  stiil  more  certainly,  by  favoring  the  establishment  of 
a  peculium,  by  the  improvement  of  which  every  industri- 
ous slave  might  be  enabled,  after  a  reasonable  period,  to 
purchase  his  freedom. 

Manners  and  customs,  however,  are  better  changed  by 
example  than  by  law.  But  that  example  ought  to  be  gra- 
dual and  insinuating,  exhibited  by  those  who  are  calcula- 
ted to  attract  the  respect  of  the  public,  and  should  never 
openly  shock  the  prejudices  of  a  people,  or  directly  wound 


305 

their  sentiments  of  propriety.  Montesquieu  remarks  that 
when  the  Czar  Peter  1st  attempted,  hy  an  ordinance,  to 
shave  the  beards,  and  change  the  dress  of  his  Russians, 
he  had  nearly  excited  a  revolt :  But,  when  he  invited  the 
ladies  to  court,  dressed  in  the  stile  of  Europe,  and  encour- 
aged his  courtiers,  by  his  favor,  to  imitate  the  European 
habits  and  manners,  he  attained  his  purpose  without  vio- 
lence. 

But  if  a  legislator  desires  to  accommodate  the  ideas  of 
his  people  to  the  institutions  he  intends  to  establish,  or  to 
give  to  those  institutions  the  greatest  stability  and  dura- 
tion of  which  human  laws  are  susceptible,  no  mean  can 
be  found  so  effectual  as  a  proper  direction  of  the  public 
education.  The  ancient  legislators  seem  perfectly  to  have 
comprehended  the  full  force  of  education.  And,  upon  this 
foundation,  they,  almost  all,  concurred  to  rest  the  stabil- 
ity of  their  laws.  But  as  their  republics  were  generally 
of  small  extent,  their  systems  of  education  were  accord- 
ingly calculated  to  their  confined  limits,  and  could  hardly 
have  been  reduced  to  practice  over  an  extended  territory. 
But,  without  confining  our  view  to  those  gymnastic  mod- 
els which  they  present  to  us,  it  is  a  duty  of  high  impor- 
tance in  the  legislature  of  each  state  to  provide  for  the 
general  information  of  the  citizens  in  the  principles  of  vir- 
tue and  good  morals,  and  in  the  whole  system  of  their 

vox.  ii.  ti  q 


306 

civil  and  social  duties.  The  means  of  useful  instruction 
should  be  made  accessible  to  every  member  of  the  com- 
munity. But,  besides  that  universal  information  which 
should  convey  the  knowledge  of  their  moral,  and  their 
civil  duties  to  the  lowest  orders  of  the  citizens,  it  is  per- 
haps of  not  less  importance  that  an  easy  access  should  be 
opened  to  a  knowledge  of  all  the  liberal  arts,  and  to  the 
higher  branches  of  science  to  those  who  have  inclination 
and  leisure  to  pursue  them.  And  colleges  and  academies 
devoted  to  the  cultivation  of  the  principles  of  universal 
literature,  might  be  regarded  as  so  many  elementary 
schools  for  training  a  constant  succession  of  wise  and  en- 
lightened statesmen  for  the  republic,  and  fountains  of  a 
diffusive  illumination  that  should  contribute  to  its  glory 
and  happiness.  A  well  informed  people,  moulded  in  the 
habits  of  virtue,  cannot  easily  be  enslaved.  But  no  de- 
partment of  knowledge  can  be  of  more  importance  to  the 
citizen,  or  more  beneficial  to  the  state,  than  that  of  the 
civil  constitution  under  which  he  lives,  and  of  the  great 
outlines  of  the  laws  by  which  he  is  governed.  And  it 
would  be  a  work  worthy  the  wisdom  of  the  legislature  of 
a  free  and  enlightened  people  to  provide  for  the  compila- 
tion of  an  elementary  work  of  this  kind,  which  should 
form  a  part  of  the  instruction  in  every  primary  school 
within  the  state.  Understanding  the  principles  of  the 
government,  attaches  the  citizen  more  firmly  to  them, 


307 

and  awakens  his  vigilance  to  their  preservation.  The 
knowledge  of  the  laws,  as  far  as  they  are  understood,  in- 
creases his  love  of  justice.  The  simple  elements  of  the 
jurisprudence  of  the  republic,— .those  elements  especially, 
which  are  connected  with  all  the  ordinary  transactions  of 
society,  should  form  a  necessary  branch  of  the  education 
of  a  citizen,  from  the  highest  to  the  lowest  order  of 
schools  in  the  state. 

The  policy  of  the  great  Jewish  legislator  on  this  sub- 
ject was  admirable.  He  incorporated  his  political,  and 
civil  institutions  with  the  laws  of  religion.  The  people 
were  enjoined  continually  to  read  them  in  private,  and 
they  were  publicly  read  in  their  audience  on  every  sab- 
bath. And,  still  more  solemnly,  tbey  were  recited  at  all 
the  great  festivals  to  the  assembled  nation.  Every  Is- 
raelite, as  was  the  intention  of  Moses,  had  the  laws  of 
his  country,  and  of  his  religion,  its  civil  police,  and  its 
sacred  ritual,  in  a  great  measure,  by  heart.  They  were 
incorporated,  moreover,  with  all  his  ideas,  and  all  his  af- 
fections. Hence  these  institutions  have  endured  longer 
than  those  of  any  other  legislator,  and  have  ever  been  ad- 
hered to  by  that  people  with  a  more  ardent,  and  perse- 
vering zeal,  than  lias  been  found  in  any  other  nation. 


S0& 

OF  THE  CORRUPTION  OF    THE    PRINCIPLES    OF  THE    GOV- 
ERNMENT. 

As  the  laws  ought  to  be  relative  to  the  principle  by 
which  the  government  is  made  to  move,  education,  cus- 
toms, manners,  every  thing  in  the  state  of  the  republic, 
should  contribute  to  strengthen  that  principle.  But  there 
is  a  certain  excess  to  which  the  actuating  spring  of  each 
government  tends,  which  it  is  no  less  requisite  to  repress 
with  the  utmost  vigilance  of  the  law. — For  example,  the 
principle  of  a  monarchy,  says  Montesquieu,  is  corrupted, 
when  the  prince,  forgetting  that  it  is  his  interest  to  main- 
tain only  a  general  inspection  into  the  government,  by 
his  authority  preserving  the  magistrates  attentive  to  their 
duty,  affects  to  govern  every  thing  immediately  by  him- 
self, and  his  creatures,  destroying  the  privileges  and  cus- 
toms which  time  has  rendered  sacred  in  the  esteem  of  the 
people,  and  by  which  they  still  retain  a  portion  of  liberty 
amidst  the  overwhelming  power  of  the  monarch, — when 
he  thinks  he  shews  his  power  more  by  changing,  than  by 
conforming  to  the  laws, — when  he  calls  all  the  considera- 
ble officers  of  the  state  round  his  own  person,  to  make 
them  feel  their  dependence,  and  to  receive  their  flatteries, 
— when,  stripping  his  ministers  of  popular  respect,  he 
uses  them  merely  as  the  tools  of  arbitrary  power, — when 
the  honors  of  the  state  are  prostituted  to  the  low  and  in- 
famous panders  of  the  prince's  pleasures, — and  when, 


309 

mistaking  bis  true  interest,  he  would  govern,  rather  by 
exciting  the  fear,"  than  by  gaining  the  affection  of  his 
people  ;  and  studies  more  to  intimidate  them  by  the  cru- 
elty of  his  executions,  than  to  win  their  confidence  by  his 
public  services,  and  the  wisdom  of  his  administration. 
Such  a  monarchy  is  hastening  into  despotism ;  and  the 
infatuated  monarch  is  creating  tbat  insecurity  for  himself, 
which  it  seems  his  principal  study,  by  the  severity  of  his 
measures,  to  avoid. — Supreme  power,  united  with  the 
bad  education  of  princes,  has  a  strong  tendency  to  this 
issue  in  the  progress  of  a  very  few  successions. 

The  principle  of  a  democratic  republic  is  corrupted 
when  the  spirit  of  equality,  which  is  naturally  cherished 
by  the  enjoyment  of  liberty,  is  carried  to  an  extreme.  All 
men,  by  nature,  have  equal  rights.  And  in  a  well  regula- 
ted republic  they  possess  equal  rights  as  citizens.  But, 
from  that  equality  of  right,  by  which  each  man  is  secured 
in  the  possession  of  the  fruits  of  his  own  industry,  and 
ingenuity,  and  in  the  fortuitous  accessions  which  have 
fallen  to  him  by  the  natural  order  of  things,  or  the  ar- 
rangements of  society,  necessarily  arises,  in  a  course  of 
time,  an  inequality  of  property  among  the  citizens.  And, 
from  the  necessary  order  of  government  results  an  in- 
equality of  rank  between  the  magistrate  and  the  citizen. 
It  is  essential  to  the  peace  and  prosperity  of  the  state  that 
property  should  be  respected,  that  the  citizens  should  be 


310 

obedient  to  the  laws,  and  should  reverence  the  magistrate 
as  their  interpreter,  and  the  organ  of  their  justice.  But 
when  that  reverence  is  withdrawn  from  the  magistrate, 
or  when  magistrates  render  themselves  unworthy  of  the 
public  confidence  by  private  and  mercenary  aims  in  the 
discharge  of  their  civil  functions  ,•  when  the  people  grow 
impatient  of  law  and  order,  and  wantonly  endeavor  to 
subvert  them  through  the  variable  caprice  of  popular 
passion,  or  in  unjustly  pursuing  the  objects  of  faction  ; 
or,  when  the  magistrate,  embarked  in  the  vortex  of  fac- 
tion, puts  himself  at  the  head  of  a  party  instead  of  his 
country  ; — or,  finally,  when  the  mass  of  the.  people,  flat- 
tered by  their  demagogues,  grow  insolent  and  envious  of 
the  rich,  and  are  impelled  to  infringe  on  the  sacred  rights 
of  property,  the  republic  is  on  the  eve  of  dissolution.  To 
this  extreme  the  democratic  form  of  government,  unless 
placed  under  the  strictest  guards,  and  regulated  by  the 
happiest  organization,  as  naturally  tends  as  monarchy  to- 
wards despotism.  For,  every  thing  depending  on  the 
people,  those  who  are  ambitious  to  court  their  favor 
are  ever  ready  to  flatter  them  on  their  power  that 
they  may  turn  it  to  their  own  interest,— .to  inflame  their 
passions  that  they  may  be  permitted  to  direct  them, — to 
excite  suspicions,  or  hatred  against  those  who  have  the 
actual  administration  of  affairs,  that  they  themselves  may 
mount  into  office  on  the  turbulent  tide  which  they  have 


811 

created.  Thus  the  people  become  haughty  and  impatient 
of  control,  and  are  so  jealous  of  their  liberties,  for,  it  is 
on  this  subject  that  their  demagogues  perpetually  ha- 
rangue them,  that  they  bear  with  difficulty  the  restraints 
of  government.  The  lowest  and  poorest  aspire  to  be  on  a 
level  with  the  richest,  and  have  always  been  found,  in  a 
course  of  time,  to  turn  their  attention  towards  a  division 
of  the  property  of  the  state  among  themselves.  Becoming 
idle,  at  last,  as  well  as  insolent,  the  elections  are  made 
venal.  The  populace  must  be  gratified,  whatever  their 
pleasures  cost,  at  the  expense  either  of  the  public,  or  of 
those  who  solicit  their  suffrages  :  and  if  the  latter,  means 
must  be  found  to  reimburse  it  out  of  the  public  treasure. 
But,  while  the  populace  are  indulged,  their  servants,  who 
are  also  their  masters,  may  securely  pillage  the  coffers  of 
the  state,  or  dispose  of  its  honors,  or  its  offices,  to  their 
friends,  for  their  own  advantage.  The  deluded  people  will 
not  suffer  them  to  be  called  to  account.  Corruption  and 
anarchy  continue  to  increase,  till  different  popular  favor- 
ites starting  up,  and  aiming  to  enslave  the  people  by  means 
of  the  people  themselves,  they  are  all,  at  length,  superce- 
ded by  one  more  fortunate  than  the  rest ;  who  becomes 
the  tyrant  of  a  new  dynasty. — Thus  perished  the  liberty 
©f  Rome ;  and,  in  a  similar  vicissitude,  many  of  the  Gre- 
cian states  long  vibrated  between  anarchy  and  the  tyran- 
ny of  successive  demagogues. 


Sl'Z 

A  democracy  has  two  evils  to  avoid : — .one  is  great  in- 
equality of  wealth  among  the  citizens  which  leads  to 
aristocracy  ; — the  other  is  the  spirit  of  extreme  equality, 
which  leads  to  anarchy  in  the  first  place,  and  tends  event- 
ually, in  the  natural  progress  of  events,  to  despotism. 
This  spirit  in  a  republic,  is  greatly  cherished  by  foreign 
conquests,  and  splendid  national  successes  acquired  chiefly 
by  the  influence  of  the  people.  Arrogant  and  intractable, 
they  will  hardly  then  submit  to  the  control  of  the  supe- 
rior, but  mild  authority  of  the  laws.  Jealous  of  the  ma- 
gistrates, they  become  jealous  of  the  magistracy  itself. 
They  devote  themselves,  often  with  a  certain  frenzy,  to 
any  leader  who  promises  to  augment  their  glory,  who 
flatters  their  vanity,  cherishes  their  idleness,  and  gratifies 
their  extravagance  by  the  influx  and  dissipation  of  foreign 
wealth  gathered  from  the  spoils  of  nations. 

OF  FRUGALITY  IN  A   REPUBLIC,    AND    THE    MEANS    TO 
PROMOTE    IT. 

The  spirit  of  republican  virtue  is  greatly  aided  by  the 
frugal  and  simple  manners  of  the  citizens.  A  people  of 
simple  manners  have  seldom  any  strong  voluptuous,  or 
mercenary  passions  to  divide  or  divert  their  attention 
from  that  superior  concern  which  every  good  citizen 
should  feel  for  his  country.  On  this  the  whole  force  of 
their  minds  will  naturally  be  bestowed.  But  when  luxury 
invades  the  degenerate  community,  the  considerations  of 


313 

public  good  are  commonly  lost  in  the  pursuits  of  private 
pleasure  and  ambition.    General  luxury,  and  genuine  pat- 
riotism in  the  spirit  of  a  country,  are  forever  incompati- 
ble.  The  state  ought,  in  such  a  case,  if  possible,  to  pos- 
sess some  means  of  revolving  easily  into  another  form  of 
government.    The  laws  in  a  commonwealth,  in  order  to 
preserve  the  public  virtue,  should  study  to  preserve  the 
frugality  of  the  public  manners.    One  of  the  most  effec- 
tual, and  least  offensive  means  of  arriving  at  this  end, 
would  be,  by  prudent  regulations,  preventing  the  growth 
of  extreme  inequality  in  the  fortunes  of  individual  citi- 
zens.   In  many  of  the  ancient  republics  a  violent  measure 
was  attempted  for  this  purpose  by  the  establishment  of 
agrarian  laws,  and  founding  the  civil  order  of  the  state 
on  an  equal  division  of  the  lands  among  all  the  citizens. 
Such  laws,  however,  are  not  practicable,  except  in  states 
of  very  small  extent,  founded  entirely  on  agricultural  in- 
stitutions.  They  are,  moreover,  utterly  inconsistent  with 
the  spirit  and  principles  of  a  nation  addicted  to  commerce  ; 
which,  in  the  midst  of  wealth,  and  a  certain  magnificence 
which  accompanies  it,  is  always  frugal.    A  more  eligible 
method,  perhaps,  to  introduce  as  great  an  equality  into 
the  state  as  is  practicable,  and  beneficial,  is  by  the  regu- 
lation of  dowries,  inheritances,  and  testamentary  settle^ 
ments,  so  that  the  largest  estate  which  any  man  may  ac- 
quire by  the  most  successful  industry,  shall,  usually,  be 
vol.  ii.  k  r 


31* 

so  divided  among  his  licirs  as  shall  seldom  place  them 
above  the  necessity  of  a  prudent  and  habitual  exertion  of 
their  own  talents. — .The  best  model  of  an  agrarian  law 
which  the  history  of  ancient  nations  presents  to  us  was 
that  established  by  Moses  in  the  land  of  Israel,  which, 
while  it  promoted  all  the  economy,  and  frugality  aimed 
at  by  the  division  of  the  lands,  permitted,  at  the  same 
time,  to  a  certain  degree,  of  the  elegant  accommodations 
furnished  by  commerce.* 

Some  small  republics  have  appointed  senates  to  be  per- 
petual models  of  manners. 

It  is  evident  that  such  an  institution  could  be  of  no  use 
ijn  an  extensive  state  in  which  the  senators  must  be  in  a 
great  measure  lost  from  the  view  of  the  great  majority  of 
the  people. 

The  censorship  was  instituted  among  the  Romans  to 
preserve  the  purity  of  the  public  manners.  While  man- 
ners continued  pure  it  assisted  in  their  preservation.  But 
when  luxury  invaded  the  mass  of  the  people,  together 

*  Money  exchanges,  and  the  use  of  credit,  which  were  al- 
most utterly  excluded  by  the  institutions  of  Lycurgus,  by  his 
iron  medium,  and  the  unalienable  tenure  of  lands,  had  a  certain 
existence  in  Israel,  by  the  circulation  of  the  precious  metals, 
and  the  power  of  pledging  lands  for  the  redemption  of  loans, 
or  the  liquidation  of  debts,  till  the  period  of  the  Jubilee,  which 
might  be  from  one  to  fifty  years. 


31o 

with  its  attendants  voluptuousness  and  ostentation,  the  of- 
fice eould  no  longer  be  executed.  It  is  evident  that  this, 
like  the  former,  is  an  institution  which  can  be  of  no  utili- 
ty beyond  the  bounds  of  a  single  city,  and  its  environs. 

It  is  a  maxim  which  merits  the  particular  attention  of 
the  legislator ;  that  while  the  principle  of  the  constitution 
is  preserved  in  its  purity,  the  worst  laws  may  be  harmless, 
but  when  that  is  corrupted,  the  best  are  often  rendered 
useless,  or  pernicious.  Among  a  virtuous  people  an  oath 
is  more  powerful  than  interest.  A  Roman  consul  could 
lead  a  whole  army  to  their  duty  by  the  remembrance  of  the 
oath  they  had  taken  before  their  standards,  in  opposition 
to  the  most  violent  impulses  of  seditious  passions.  But 
when  the  popular  mass  is  corrupted,  oaths  are  only  made 
a  protection  to  crimes :  and  the  frequency  of  swearing 
only  tends  more  effectually  to  prostrate  the  public  morals. 
— And  Plutarch  remarks  that  the  gymnastic  exercises  of 
Sparta,  which  anciently  contributed  to  form  hardy  sol- 
diers for  the  defence  of  the  state,  afterwards,  when  the 
people  had  lost  their  virtue,  only  infected  the  youth  with 
cowardice,  and  inclined  them  to  infamous  passions. 

OF  SUMPTUARY  LAWS. 

It  has  been  made  a  question  among  political  moralists, 
how  far  frugality  ought  to  be  enforced  by  sumptuary  laws* 
— or  laws  prescribing  certain   limit*  to   expense  in  the 


316 

dress,  table,  and  equipage  of  the  citizens.  In  proportion 
as  the  political  institutions,  or  physical  circumstances  of  a 
state,  have  contributed  to  bring  the  property  of  the  citi- 
zens nearly  to  an  equality,  sumptuary  laws  become  un- 
necessary. Luxury  cannot  exist  in  such  a  state  ;  but 
after  great  inequality  has  already  taken  place,  they  are 
inexpedient,  because  they  cannot  be  executed  without  ex- 
citing public  discontent.  In  the  extreme  rusticity  of  the 
Spartan  manners  they  might  be  beneficial  to  prevent,  or 
arrest  a  decay  of  the  principle  of  the  constitution.  In  a 
state  that  exists  by  commerce  they  are  often  injurious ; 
for,  notwithstanding  the  spirit  of  commerce  is  frugal,  yet 
a  certain  elegance,  and  even  magnificence  of  expense  in 
wealthy  merchants,  is  useful  for  the  encouragement  of 
the  arts,  and  furnishing  occupation  to  the  lower  orders  of 
citizens. 

Frugality  to  a  degree,  is  requisite  in  an  aristocratic 
government  as  well  as  in  a  democracy.  Otherwise,  that 
moderation  of  the  passions  which  is  the  principle  of  the 
government,  and  essential  to  its  prosperity,  cannot  be 
maintained.  Yet,  as  the  government  itself  is  founded  in 
great  inequality  of  fortune,  some  legitimate  means  of  ex- 
pense should  be  encouraged  which  may  at  the  same  time, 
be  consistent  with  the  frugality  of  private  manners.  Other- 
wise, we  should  every  where  see,  in  such  a  state  as  this, 
very  poor  men  without  the  possibility  of  bettering  their 


317 

fortune,  and  very  rich  men  without  the  power  of  enjoying 
theirs.  The  state  will  he  impeded  in  its  prosperity  for 
want  of  a  proper  circulation  of  its  wealth. 

To  remedy  this  inconvenience,  that  was  an  excellent 
custom  among  the  ancient  Greeks,  by  which  the  wealthy 
were  encouraged  to  employ  their  riches  in  executing 
chargeable  offices  for  the  good  of  their  country  and  in 
festivals  and  choruses  for  the  entertainment  of  the  peo- 
ple. To  these  might  be  added,  the  erection  of  libraries 
fordiffusing  the  lights  of  science  more  extensively  through 
the  republic — the  raising  of  statues  and  monuments  in 
commemoration  of  the  distinguished  patriots,  or  the  great 
events  of  the  nation — forming  gardens  and  public  walks 
for  the  accommodation  of  the  citizens — and,  above  all,  exe- 
cuting canals,  roads,  harbors,  and  other  noble  and  gene- 
rous labors  for  the  improvement  and  glory  of  their  coun- 
try. To  all  which  they  might  be  encouraged  by  public 
honors,  and  by  some  conspicuous  means  of  perpetuating 
the  remembrance  of  their  works. — Athens  frequently  ex- 
hibited the  most  distinguished  union  of  public  magnifi- 
cence with  private  simplicity.  In  that  renowned  city  in 
which  existed  the  most  splendid  monuments  of  the  arts, 
erected  by  the  noble  munificence  of  private  citizens,  we 
might  often  see  them  entering  their  own  doors  by  a  sim- 
ple latch. 


118 


LECTURE  XXVIII. 


OF  THE  OBJECTS  OF  NATIONAL  POLICY  ',  AND  FIRST  OF  A 
POLITICAL  CONSTITUTION. 

Of  the  separation,  and  union  of  the  different  powers  of 

government  of  the  British  constitution The  analogy 

of  the  constitutions  of  the  several  states — and  of  that 
espccialhj  of  the  United  States. 

I  PROCEED,  in  this  lecture,  to  the  second  branch 
of  the  science  of  politics,  which  is  to  point  out,  anil  illus- 
trate some  of  the  principal  objects  of  national  policy  ;—*- 
the  establishment  of  a  political  constitution, — taxation 
and  revenue, — the  regulation  of  commerce,-r-the  means 
of  promoting  population,  agriculture,  and  the  arts.  On 
the  last  three  of  these  subjects  I  have  already,  in  the  third 
and  fifth  lectures,  made  such  observations  as  I  thought 
were  necessary  for  our  present  purpose.  I  shall  now, 
therefore,  make  only  a  few  reflections  on  the  three  for- 
mer, as  far  as  I  conceive  every  student  ought  to  be  ac- 
quainted with  the  subject,  before  he  leaves  the  place  of 
liis  elementary  education,  let  his  pursuits  afterwards  in 
life  be  what  they  may.  At  the  same  time,  brief  as  they 
are,  they  may  serve  as  a  useful  introduction,  to  prepare 
the  minds  of  those  wh<*  arc  aiming  to  become  civilians, 


319 

to  enter  more  extensively  hereafter  into  the  career  of 
their  political  studies. 

OF  A  POLITICAL  CONSTITUTION. 

Most  governments  have  been  originally  founded  in  the 
authority  of  a  single  person,  or  of  a  few  families,  which 
has  gradually  grown  up  by  custom,  or  ultimately  termi- 
nated, after  various  revolutions,  and  changes,  in  the  do- 
minion of  one.  The  schemes  of  policy  have  seldom  been 
deliberately  formed,  and  established  by  the  will  of  the 
people  who  have  voluntarily  submitted  themselves  to  the 
control  of  their  own  laws.  It  is  not  sufficient,  however, 
that  a  great  people  enjoy  the  privilege  of  chusing  their 
own  government,  unless  the  fabric  of  it  is  so  wisely  con- 
structed as  to  secure  its  own  duration,  and  to  give  as  much 
liberty  as  possible  to  the  citizen,  in  consistency  with  the 
general  good  order  of  society.  This  must  be  provided  for 
in  the  internal  organization  of  the  political  system  in 
such  a  manner  that,  while  all  the  parts  move  together 
harmoniously  to  promote  the  public  welfare,  no  one  part 
shall  have  such  disproportioned  strength  as  to  afford 
either  the  means,  or  the  motives  to  disturb,  or  improperly 
control  the  motions  of  the  rest,  while  the  true  interest  of 
all  shall  be,  as  near  as  the  errors,  and  imperfection  of 
human  judgment  will  permit,  the  common  interest  of  the, 
nation.    That  frame  of  the  government  which  is  oalcu- 


320 

lated  to  afford  this  permanent  security  for  the  freedom 
and  happiness  of  the  people,  is  called  the  political  liberty 
of  the  constitution.  Civil  liberty  consists  in  the  security 
which  they  have  of  property,  and  of  personal  safety,  and 
in  the  undisturbed  opinion  which  they  enjoy  of  that  se- 
curity. 

Sometimes  manners,  customs,  religion,  a  fortunate 
combination  of  circumstances,  will  procure  for  a  nation  a 
greater  portion  of  civil  liberty,  that  is,  of  personal  free- 
dom and  security,  than  their  political  constitution  pro- 
mises to  bestow  ',  and  sometimes,  beneath  the  impulse  of 
party  feelings  and  passions,  we  perceive  the  oppressions 
of  arbitrary  power  amidst  the  most  specious  forms  of 
liberty. 

The  liberty  of  the  constitution  is  produced  by  such  a 
distribution,  and  arrangement  of  the  necessary  powers  of 
government,  that  they  shall  severally  impose  a  salutary 
check  upon  each  other,  thereby  preventing  that  abuse  to 
which  unrestrained  power  is  always  prone.  The  great 
powers  of  government  have  been  divided  into  the  legisla- 
tive, the  executive,  and  the  judiciary.  And  the  wisdom 
of  the  legislator  appears  in  the  organization  of  these 
powers  in  such  a  manner  that  they  shall  always  preserve 
an  equable  balance  among  them  in  the  operations  of  the 
government ;  at  the  same  time  that  each  shall  apply  an 


321 

efficient  restraint  on  the  other  departments,  which  may 
in  any  way  attempt  to  transcend  the  authorities  entrusted 
to  it  in  the  general  organization. 

If  men  were  perfectly  wise  and  virtuous,  all  the  powers 
of  government  might  be  entrusted  in  the  same  hands  not 
only  with  safety  to  the  public  liberties,  but  with  advantage 
to  the  public  prosperity.  But,  as  mankind  are  liable  to 
be  impelled  and  misled  by  motives  of  interest  and  ambi- 
tion, it  is  necessary  to  make  their  rival  interests,  and  am- 
bitious aims  restrain  one  another.  These  powers  must, 
therefore,  be  deposited  in  different  hands,  and  so  balanced 
and  adjusted  that  the  interest  of  each  body  composing  the 
government  shall  have  more  relation  to  the  public  good 
than  to  any  designs  of  either  of  the  other  bodies  Avith 
which  they  are  associated  in  the  government. 

Although  the  perfect  idea  of  political  liberty  requires 
that  the  legislative,  executive,  and  judiciary  powers 
should  be  preserved  separate,  yet,  this  maxim  does  not 
imply  that  they  should  be  entirely  disunited,  and  uncon- 
nected ;  otherwise,  in  their  mutual  opposition,  the  move- 
ments of  the  government  might  be  arrested ;  or  one, 
more  powerful  than  the  rest,  would  at  length  absorb 
them  all  into  itself,  and  thus  establish  a  tyranny.  Such 
a  connexion  they  ought  to  have  as  to  make  {hem  mutually 

necessary  to  one  another  ,•  and  such  a  mutually  controlling 
vol.  ii.  s   s 


322 

power  should  they  possess,  that  each  should  he  ahle  to 
preserve  itself  in  the  full  exercise  of  its  peculiar  authori- 
ties, and  privileges,  against  the  encroachments  of  either 
of  the  others,  or  of  hoth  united.* 

The  British  constitution  has  often  presented  the  text 
on  this  subject  to  political  writers.  In  this  celebrated 
model,  from  which  many  of  the  most  useful  traits  in  our 
own  have  been  drawn,  the  king  possesses  a  negative  on 
the  proceedings  of  parliament. — The  representatives  of 
the  people  enjoy  a  check  on  the  monarch's  prerogative  of 
levying  and  commanding  the  army  by  the  privilege  of 
originating  all  supply  bills.  These  two  branches  of  the 
government  are  perfectly  independent  on  one  another, 
the  king  being  hereditary,  and  his  person  sacred,  and  in 
the  other  branch  of  the  government,  one  of  its  component 
parts  being  likewise  hereditary,  and  the  other  appointed 
immediately  by  the  people.  The  judges,  although  they 
are  appointed,  and  receive  their  commissions  from  the 
king,  yet  are  so  far  independent  that  they  cannot  be  re- 
moved from  office  except  by  the  joint  application  of  both 

*  See  these  ideas  beautifully  illustrated  in  Montesquieu's 
Spirit  of  Laws,  book  1 1th,  ch.  6,  where  he  treats  of  the  British 
constitution.  You  will  find  them  happily  applied  to  the  Ameri- 
can constitutions,  and  that,  particularly,  of  the  general  govern- 
ment of  the  United  States,  in  the  Federalist,  a  book  which  de- 
serves the  most  attentive  perusal  of  every  American  citizen. — 
See  especially  Nos.  48—5 1 . 


323 

houses  of  parliament.  The  king  possesses  a  share  in  the 
legislature  by  his  negative  on  the  resolutions  of  the  lords 
and  commons,  and  by  his  power  of  making  treaties  with 
foreign  nations.  The  house  of  lords  possesses  a  share  in 
the  judiciary,  being  the  only  court  for  the  trial  of  im- 
peachments, and  having  supreme  appellate  jurisdiction  in 
all  other  causes.  The  judges  so  far  partake  of  executive 
and  legislative  influence,  that  they  form  one  of  the  king's 
constitutional  councils,  and  are  sometimes  called  to  assist 
in  the  deliberations  of  the  legislature,  though  they  do  not 
enjoy  the  efficient  power  of  a  vote  in  any  act  of  that  body. 

This  government  furnishes  the  most  complete  example 
existing  in  any  nation,  unless,  perhaps,  we  may  except 
our  own,  of  the  separation,  and  independence,  of  these 
powers  in  the  constitution,  and  yet  the  necessary  connex- 
ions, and  relations  subsisting  between  the  bodies  respec- 
tively exercising  them.  The  supreme  executive,  being 
hereditary,  and  surrounded  with  the  majesty  of  a  throne, 
derives  thence  that  elevated  dignity,  and  powerful  influ- 
ence which  are  requisite  to  balance  the  immense  weight 
of  the  legislature.  The  division  of  the  legislature  into  two 
bodies  lessens  the  force  of  its  action  upon  the  executive, 
which  would  otherwise  be  irresistible.  And  the  lords, 
holding  an  intermediate  rank  between  the  prince,  and  the 
commons,  are  enabled  to  preserve  the  equilibrium  of  the 
government  by  adding  their  weight  sometimes  to   one 


324 

scale,  and  sometimes  to  the  other,  which  would,  other- 
wise, frequently  vibrate  very  unequally.  In  the  contest 
for  power,  the  representative  body  of  the  people  are 
known  once  to  have  prevailed,  and  overturned  all  the 
other  orders  of  the  state.  And  their  weight  in  the  gov- 
ernment would,  perhaps,  always  be  too  great  for  both  the 
correlative  bodies  of  the  constitution,  if  the  decayed  bor- 
oughs did  not  give  the  crown  an  opportunity  of  purcha- 
sing, or  powerfully  influencing  a  part  of  the  popular  rep- 
resentation. This  unfortunate  remedy,  however,  for  an 
immediate  inconvenience,  is  preparing  the  way  to  a  very 
different  result,  and  eventually  introducing,  perhaps,  a 
much  greater  evil.  There  is  infinite  danger  that  the  cor- 
ruption of  the  legislative  body  will  yield,  in  time,  an  un- 
controllable power  to  the  crown.  This  is  the  meaning  of 
Montesquieu  when  he  says,  «  that  beautiful  fabric  will 
perish  as  all  other  governments  have  done.  It  will  perish 
when  Ihe  legislative  becomes  more  corrupt  than  the  exe- 
cutive." 

The  American  states  have  endeavoured  to  imitate  this 
model,  as  far  as  the  difference  of  their  circumstances 
would  permit.  They  were  obliged  to  create  the  bodies 
which  exercise  the  three  great  powers  of  government  out 
of  the  same  uniform  mass  of  the  people,  and  have  studied 
to  give  them  as  much  independence  as  possible  on  one 
another,  by  the  different  modes  of  their  election.    I  had 


525 

intended  to  present  to  you  a  philosophical  examination  of 
the  principal  points  of  the  federal  constitution,  on  the 
most  acknowledged  principles  of  good  policy,  if  the  sever- 
ity and  tediousness  of  my  present  indisposition  had  not 
arrested  my  design,  as  it  has  ohliged  me  also  to  curtail, 
or  omit  many  of  the  subjects  which  I  had  proposed  to  my- 
self in  the  latter  part  of  these  lectures.  But  I  cannot  for- 
bear recommending  to  your  perusal  again,  the  excellent 
and  detailed  analysis  of  the  whole  constitution,  in  the 
Federalist,  a  work  which  was  the  combined  production  of 
several  of  the  ablest  civilians  in  America.  It  deserves, 
however,  to  be  here  remarked,  that  the  Americans,  in  their 
first  efforts  to  frame  the  political  constitutions  of  the  sev- 
eral states,  as  well  as  of  the  United  States,  fixing  their 
view  too  strongly  on  the  terrors  of  a  tyranny  from  which 
they  had  but  just  escaped,  and  making  too  high  an  esti- 
mate of  the  wisdom  and  the  virtue  of  the  people,  from 
their  exploits  and  sacrifices  during  the  war  of  the  revo- 
lution, when  the  pressure  of  imminent  danger  repressed 
almost  every  other  passion  among  them  but  love  of  the 
public,  generally  laid  the  executive  under  too  great  res- 
traint, and,  in  the  same  proportion,  enlarged,  beyond 
their  due  bounds,  the  power  of  the  legislative.  They  re- 
membered that  power  in  the  hands  of  a  single  person 
always  aims  to  extend  its  sphere.  But  they  often  seem  to 
have  forgotten,  that  its  tendency  is  the  same  in  the  hand? 


326 

of  the  many,  as  of  one :  and  that  commonly  the  encroach- 
ments of  a  numerous  body,  are  even  more  rapid,  and  more 
bold.  They  derive  confidence  from  their  numbers,  and  their 
supposed  influence  with  the  people.  In  all  the  constitu- 
tions of  the  individual  states  the  balance  inclines,  perhaps 
too  much,  to  the  popular  scale.  In  most  of  them,  the  leg- 
islative bodies  have  already  been  making  repeated  en- 
croachments on  both  their  executive  and  judiciary  depart- 
ments. Of  this  Mr  Jefferson,  in  his  notes  on  Virginia, 
complains  in  his  comments  on  the  conduct  of  the  legisla- 
ture of  that  state.  «  They  have  in  many  instances,  says 
he,#  decided  rights  which  should  have  been  left  to  judi- 
ciary controversy ;  and  the  direction  of  the  executive, 
during  the  whole  time  of  their  session,  is  becoming  habit- 
ual and  familiar."  For  a  like  reason  some  of  the  states, 
and  especially  Pennsylvania,  have  been  obliged,  by  call- 
ing a  new  convention,  to  re-model  their  constitutions.  And 
it  is  well  known  that  the  constitution  of  New-Jersey  has 
grossly  confounded  all  the  powers  of  government,  and 
suffered  its  legislature  to  absorb  almost  the  whole. 

The  convention  of  confederated  America,  in  framing 
the  federal  constitution,  has  studied,  as  far  as  possible,  or, 
at  least,  as  far  as  the  state  of  society,  and  the  preposes- 
sions  of  the  country  would  admit,  to  escape  these  errors. 
We  find,  in  experience  however,  that  the  legislative  branch, 

*  Notes  on  Virginia,  p.  195. 


327 

and  especially  the  lower  house,  which  is  composed  of  the 
most  immediate  representatives  of  the  people,  is  still  aim- 
ing at  a  similar  accumulation  of  power  in  the  popular 
branch.  And  this  dangerous  project  it  has  means,  pecu- 
liar to  its  own  body,  of  successfully  pursuing.  It  is  al- 
most impossible  to  give  to  the  head  of  the  executive,  a 
man  selected  from  the  mass  of  the  people,  that  elevation 
and  dignity  of  character,  and  that  powerful  influence, 
which  will  enable  him  effectually  to  resist  their  formida- 
ble encroachments,  or  inspire  him  with  that  energy  and 
force  of  mind,  that  will  support  him,  like  the  first  presi- 
dent of  the  United  States,  resting  on  the  glory  of  his  past 
services,  in  daring  to  repel  their  unreasonable  demands. 
It  gives  me  pleasure  to  be  able  to  confirm  these  princi- 
ples with  regard  to  the  tendencies  of  the  popular  branch 
of  the  government,  by  the  opinion  of  one  of  our  most  en- 
lightened politicians,  delivered  at  the  very  commencement 
of  the  present  federal  government,  a  time  when  his  judg- 
ment cannot  be  supposed  to  have  received  any  bias  from 
existing  parties.*  "  In  a  government,  says  lie,  where  nu- 
merous and  extensive  prerogatives  are  placed  in  the  hands 
of  an  hereditary  monarch,  the  executive  department  is 
very  justly  regarded  as  the  source  of  danger,  and  watched 
v.  ith  all  the  jealousy  which  a  zeal  for  liberty  ought  to  in- 

*  Mr  Madison  of  Virginia,  now  president  of  the  United 
Stales.   Federalist,  No.  68,  near  the  middle. 


328 

spire.  But,  in  a  representative  republic,  where  the  exe- 
cutive magistracy  is  carefully  limited  both  in  the  extent 
and  the  duration  of  its  power,  and  where  the  legislative 
power  is  exercised  by  an  assembly  which  is  inspired  by  a 
supposed  influence  over  the  people,  with  an  intrepid  con- 
fidence in  its  own  strength, — which  is  sufficiently  nume- 
rous to  feel  all  the  passions  which  actuate  the  multitude ; 
yet  not  so  numerous  as  to  be  incapable  of  pursuing  its 
objects  by  means  which  reason  prescribes, — it  is  against 
the  enterprizing  ambition  of  this  department  that  the 
people  ought  to  indulge  all  their  jealousy,  and  exhaust  all 
their  precautions." — "  The  legislative  department,  he 
adds,  derives  a  superiority  in  our  government  from  other 
circumstances.  Its  constitutional  powers,  being  at  once 
more  extensive,  and  less  susceptible  of  precise  limits,  it 
can,  with  greater  facility,  mask  under  complicated  and 
indirect  measures,  the  encroachments  which  it  makes  on 
the  co-ordinate  departments."  And  afterwards,  "  nor  is 
this  all  :  as  the  legislative  department  alone  has  access  to 
the  pockets  of  the  people,  and  has,  in  some  constitutions, 
full  discretion,  and,  in  all,  a  prevailing  influence  over  the 
pecuniary  rewards  of  those  who  fill  the  other  depart- 
ments, a  dependence  is  thus  created  in  the  latter  which 
gives  still  greater  facility  to  encroachments  of  the  former." 

It  was  frequent  with  the  ancient  philosophers  of  Greece 
to  sketch  their  ideas  of  a  perfect  republic,  and,  in  theory, 


329 

to  pursue  its  organization  into  all  its  details.  The  exam* 
pie  has  been  followed  by  some  modern  writers.  I  shall 
not  attempt  to  imitate  them.  Your  ideas  upon  this  sub- 
ject will  be  better  matured  by  comparing  together  differ- 
ent forms  of  government  in  the  course  of  your  studies, 
and  examining  in  history  the  practical  effects  of  each. 
The  great  desideratum  in  the  scienee  of  politics  is  the 
distribution  and  organization  of  the  three  powers  which 
have  been  mentioned,  in  such  a  manner,  that  they  shall 
always  move  in  concert  for  the  public  good,  and,  at  the 
same  time,  shall  form  such  necessary  checks  on  one 
another,  that  the  integrity  and  balance  of  the  whole  shall 
be  permanently  preserved.  The  imperfection  of  human 
nature,  however,  hardly  leaves  us  room  to  hope  that  this 
idea  shall  ever  be  completely  realized. 

Instead  of  presenting  you  with  any  ideal  system  I  shall 
expect  you  to  commit  faithfully  to  memory  that  form  of 
government  under  which  we  live,  and  which  is,  perhaps, 
the  best  practical  scheme  of  a  confederated  republican  in- 
stitution which  has  ever  been  framed.  The  principles  of 
our  government,  and,  if  possible,  a  summary  of  our  legal 
institutions,  I  have  before  said,  ought  to  form  essential 
objects  in  the  education  of  every  American  scholar. 

[Here  the  federal  constitution  is  to  be  committed  to 
memory.] 

vol.  ii.  t  t 


330 


LECTURE  XXIX. 


Of  other  objects  of  national  policy,  taxation  and  com- 
merce.— Of  demesne — capitation — assessment — customs. 
Customs  ought  not  to  he  laid  on  the  necessaries  of  life- 
hut  on  superfluities — no  branch  of  trade  should  be  op- 
pressively burdened.  The  merchant  advances  the  im- 
post to  the  state — The  consumer  ultimately  pays  it. 
Frauds  on  the  revenue  restrained  by  fiscal punishments. 
When  the  laivs  are  equitable,  these  punishments  may  be 
severe,  they  are  otherwise  ruinous  to  trade. — Of  excise. 
— Of  the  maxim,  that  taxes  contribute  to  the  benefit  of  a 
state,  and  sometimes  to  the  improvement  of  manufac- 
tures— Of  commerce  internal  and  external — Of  econom- 
ical commerce — Liberty  necessary  to  a  flourishing  com- 
merce— Of  banks — Of  the  incorporation  of  exclusive 
companies  for  trade — Commerce  ought  to  befrec — Of 
commercial  treaties — Of  facilities  for  compelling  punc- 
tuality in  commercial  engagements-— Of  the  balance  of 
trade — Of  money — Of  coinage — Of  bills  of  exchange. 

ONE  of  the  principal  operations  of  government  re- 
lates to  the  laying  and  collecting  of  revenue.  Revenue  is 
that  portion  of  the  property  of  the  citizens  which  is  re- 
quired by  government  for  the  immediate  purposes  of  the 


331 

state.  Formerly,  the  greater  part  of  the  income  of  the 
princes  of  Europe,  except  the  feudal  services  of  theii*  vas- 
sals, arose  from  demesne ;  that  is,  from  those  lands  at- 
tached to  the  crown,  which  might  he  considered  as  the 
landed  estate  of  the  sovereign.  A  source  of  revenue  of 
this  kind  may  exist  in  countries  newly  occupied,  as  in  the 
United  States  of  America,  in  which  are  large  quantities  of 
land  not  yet  distributed  in  private  property,  from  the  sale 
of  which  a  considerable  augmentation  may  be  derived  to 
the  public  treasury.  This,  from  the  natural  progress  of 
society,  will  be  daily  diminishing,  and  it  is  the  interest  of 
the  public  that,  as  speedily  as  possible,  it  should  be 
wholly  extinguished,  leaving  no  portion  of  the  soil  unap- 
propriated by  useful  and  active  citizens.  The  chief  means 
ofprovidingforthe  public  exigencies  therefore,  is  taxation. 
And  one  of  the  principal  objects  of  political  science  is  to 
be  able  to  impose,  and  to  raise  taxes  in  such  a  way  as  shall 
be  most  effectual  to  supply  the  necessities  of  the  state,  and 
be  the  least  burdensome  to  the  citizens. 

Taxes  ought  to  regulated  according  to  the  real  exigen- 
cies of  the  government,  and  the  convenience  of  the  peo- 
ple. But  the  exigencies  of  the  government  should  never 
be  measured  by  the  ambition,  caprice,  or  passions  of 
those  who  have  the  direction  of  public  affairs  ',  nor  of  the 
people  themselves  in  those  momentary  paroxysms  of  rage, 
or  of  vanity  to  which  they  are  sometimes   stirred  up  by 


332 

their  demagogues.  The  democratic  mass  are  often  not 
less  apt  than  princes,  to  be  seduced  by  an  imaginary  glory, 
and  often  excited  by  a  sudden  impulse  of  passion,  to  pur- 
sue expensive  schemes  that  flatter  the  national  vanity  for 
a  while,  but  in  the  end  draw  after  them  poverty  and  ruin. 
When  the  real  wants  of  a  country  are  ascertained,  these 
must  be  provided  for,  how  great  soever  may  be  the  cost, 
or  effort. 

In  raising  the  necessary  revenues  of  the  state,  it  should 
be  a  consideration  of  primary  concern  with  the  legislature 
to  select  those  subjects  of  taxation  which  shall  be  least 
oppressive  to  the  people,  and,  at  the  same  time,  most 
productive  to  the  public.  All  taxes  are  reducible  to  the 
heads  of  capitation,  assessment,  customs,  or  excise. 
Capitation,  as  its  name  imports,  is  a  tribute  levied  on 
the  citizens  simply  according  to  their  number.  This  is, 
perhaps,  the  most  unequal  mode  of  taxation.  The  rich 
man  pays  nothing  more  than  the  poor ;  and  the  poor  man 
nothing  less  than  the  rich.  It  is  a  tax  however,  which, 
from  the  simplicity  of  its  nature,  is  peculiarly  adapted  to 
despotic  states.  In  them  many  and  intricate  details  do 
not  agree  with  the  genius  of  the  government.  And  much 
complication  in  the  system  of  finance,  would  afford  tbe 
officers  of  the  prince  too  great  an  opportunity  to  oppress 
the  su'»ke(s  without  auv  means  of  detection,  or  redress. 


333 

Assessment  is  a  certain  proportional  rate  levied  on  the 
property,  or  wealth  of  each  citizen.  Such  a  system  of 
taxation  may  be  rendered  perfectly  equitable  and  just, 
although  the  greatest  inequality  subsist  in  the  property  of 
different  citizens.  Land  being  the  most  visible  and  per- 
manent subject  of  property,  is  best  adapted  to  this  spe- 
cies of  taxation.  Stock  in  trade  is  much  more  difficult  to 
be  ascertained  with  the  precision  requisite  fcr  an  equita- 
ble tax.  It  is  of  so  fluctuating  a  nature  as  to  render  it  al- 
most impossible  to  be  sure  that  you  possess  its  real  amount. 
And  attempts  to  assess  it  with  accuracy  would  probably 
be  attended  with  many  frauds  in  the  proprietor,  or  with 
oppression  on  the  part  of  the  government,  and  an  impro- 
per disclosure  of  the  secrets  of  trade. 

Assessments  of  land  for  the  purposes  of  taxation  should 
be  framed  not  merely  according  to  its  quantity,  or  ad- 
measurement, but  according  to  the  quality  of  the  soil, 
and  the  nature  and  value  of  its  produce.  These  circum- 
stances cannot  be  designated  by  any  law,  but  may  gene- 
rally be  ascertained  by  honest  and  judicious  men  of  the 
vicinity  without  oppression  or  fraud,  and  without  any 
great  error  from  the  truth  of  the  facts. 

In  laying  the  rate  of  taxes,  allowance  should  always  be 
made  for  the  necessaries  of  life.  Necessaries  ought  always 
to  be  exempted  from  every  public  burden.   The  surplus 


33* 

above  these  which  the  soil  would  yield  under  a  prudent 
and  industrious  cultivation  should  solely  be  the  object  of 
taxation.  Taxes  ought  as  much  as  possible  to  be  laid  only 
on  convenicncies  and  superfluities. 

Customs  are  that  species  of  taxation  which  is  most  fa- 
vorable to  liberty,  or,  at  least,  to  that  sense  of  freedom  so 
dear  to  every  citizen,  and  so  necessary  to  the  general  con- 
tentment, and  happiness  of  the  people.  They  are  imposts 
laid  according  to  a  certain  rate,  prescribed  by  law,  on 
merchandize  imported,  exported,  or  exchanged  in  trade. 
"When  prudently  laid,  the  merchant  always  makes  the 
advance  to  the  state,  required  by  the  revenue  ;  and  is  re- 
imbursed by  a  proportional  augmentation  in  the  price  of 
his  commodities.  Eventually  the  consumer  pays  the  im- 
post to  the  merchant,  which  he  has  advanced  to  the  state ; 
but  confounding  it  with  the  price  of  the  goods,  he  consid- 
ers it  as  a  voluntary  bargain,  and  is  not  sensible  that  he 
is  paying  a  contribution  to  the  public.  This  is  the  ground 
of  his  contentment.  The  demand  for  money  is  always 
odious,  when  no  compensation  for  it,  real  or  imaginary,  is 
perceived.  But  when  men  seem  to  receive  an  equivalent, 
the  duty  is  cheerfully  paid.  This  is  the  great  advantage 
of  this  species  of  tax  :  the  payment  being  wholly  optional 
on  the  part  of  the  consumer,  he  considers  it  not  as  a  de- 
mand of  the  state,  but  merely  as  an  ordinary  transaction 
of  commerce.    In  order  to   favor  this  deception,  so  con- 


335 

ducive  to  the  public  tranquility,  two  principles  are  im- 
portant to  be  observed, — in  the  first  place,  that  there 
be  a  reasonable  proportion  between  the  quantity  of 
the  impost,  and  the  natural  price  of  the  commodity. 
Otherwise  the  tax  is  felt,  aud  (he  illusion  is  at  an  end. 
In  the  next  place,  imposts  should  not  be  laid  on  such  arti- 
cles as  are  become  absolute  necessaries  of  life  among  the 
poor,  except,  perhaps,  in  some  rare  instances  in  which 
they  cannot  easily  be  reached  by  any  other  tax.  Such 
duties  operate  like  a  capitation,  and  are  necessarily  griev- 
ous and  unequal  in  their  pressure  upon  the  people.  A 
wise  policy  will  lay  them  as  much  as  possible  on  mere 
luxuries,  and  merchandizes  of  costly  ornament  and  ac- 
commodation. In  that  case,  they  fall  directly  on  the 
wealthy,  or  the  prodigal,  and  are  the  most  willingly  paid. 

It  is  the  part  of  legislative  wisdom  not  to  impose  an 
unequal  burden  on  any  branch  of  commerce.  Large  im- 
posts may  be  so  laid  as  to  defeat  their  own  end,  and  impair 
the  revenue  by  diminishing  consumption,  or  amounting 
to  a  prohibition  of  the  article.  Moderate  customs,  with  a 
flourishing  commerce,  serve  most  effectually  to  replenish 
the  public  treasury. 

Another  observation  merits  attention  on  this  subject. 
As  the  merchant  who  makes  the  advance  of  the  duties  to 
the  state  must  not  only  be  eventually  reimbursed,  but  re- 


356 

eeive  a  profit  upon  this  advance,  as  well  as  upon  all  other 
monies  employed  in  his  mercantile  transactions,  the 
earlier  in  trade  any  customs  or  duties  are  made  payable 
to  the  public,  each  transfer  requiring  a  new  profit,  the 
more  the  prices  of  the  goods  become  increased  at  last  to 
the  consumer. 

Customs,  when  raised  beyond  a  certain  reasonable  pro- 
portion between  the  duty  and  the  original  price  of  the 
commodity,  if  they  do  not  lessen  importation,  always  af- 
ford temptations  to  the  practice  of  smuggling,  so  injurious 
to  the  public  morals,  as  well  as  to  the  revenue.  Whenever 
the  risk  of  smuggling  is  overbalanced  by  the  amount  of 
the  impost,  the  treasury  will  be  defrauded. 

Frauds  committed  on  the  revenue  are  restrained,  or 
corrected  by  fiscal  punishments.  When  imposts  are  mod- 
erate, and  the  nation  free,  that  is,  subject  only  to  the 
government  of  laws,  and  not  of  men,  these  penalties  may 
be  made  severe.  They  may  be  even  more  severe  than 
they  can  be  made  in  despotic  states  with  any  safety  to 
the  interests  of  commerce.  But  if  they  are  excessive, 
then  rigorous  fiscal  punishments  operate  the  ruin  of  trade- 
as  well  as  the  oppression  of  the  citizen. 

The  last  species  of  taxation  is  excise,  which  is  a  duty 
paid  on  commodities  in  actual  occupation  and  use ;  not 
levied  as  customs  are  on  goods  in  trade,  and  in  the  course 


3*5 

sent  to  Flanders,  was  interdicted  in  England,  that  it  might 
produce  a  greater  profit  at  home,  by  being  worked  into 
cloth. 

The  freedom,  or  facility  of  trade  is  injured  by  all 
unnecessary  delays,  or  intricacies  in  the  transaction  of 
business  at  the  custom  houses.  The  more  effectually 
the  laws  guard  the  trader  from  imposition,  and  the 
fewer  auditors  and  judges  he  is  obliged  to  be  con- 
cerned with,  the  more  favorable  is  the  policy  to  the  ope- 
rations of  commerce.  Its  affairs  are  the  transactions  of 
every  day.  Expedition  therefore,  in  all  the  forms  of  bu- 
siness, and  in  all  the  judicial  questions  arising  in  it,  is  of 
the  greatest  utility  to  the  merchant. 

As  the  life  of  commerce  depends  upon  the  punctual 
fulfilment  of  engagements,  every  facility  should  be  put  in 
the  power  of  the  merchant  to  compel  punctuality  in  con- 
tracts. Let  it  be  lawful  for  him,  says  Montesquieu,  even 
to  seize  the  person  for  debt.  That  great  oracle  of  legis- 
lation speaks  of  it  as  an  excellent  law  in  Geneva  which 
excludes  from  the  chief  honors  and  privileges  of  the  state 
the  children  of  those  who  die  insolvent  unless  they  have 
first  discharged  the  debts  of  their  parents. 

In  the  intercourse  between  nations,  there  will  generally 

arise  in  the  settlement  of  their  accounts  at  the  close  of 

each  year,  a  balance  due  from  one  to  another.    An  unfa- 
vol.  ri.  xx 


346 

vorable  balance  due  to  one  nation  must  be  compensated 
by  a  favorable  one  received  from  some  other  ,•  otherwise 
the  specie,  which  supplies  the  channels  of  its  trade, 
would,  in  time,  be  drained  from  the  country,  and  a  stag- 
nation in  business  ensue.  Commercial  nations  are  fre- 
quently seen  indulging  an  unnecessary  solicitude  con- 
cerning the  balance  of  trade,  and  fatiguing  themselves 
with  jealous  calculations  and  fears  about  its  poise.  If  the 
laws  are  good,  the  manners  industrious,  and  the  habits  of 
the  nation  frugal,  these  are  the  surest  means  of  turning 
the  scale  ultimately  in  its  favor.  Frugality  enables  artifi- 
cers to  work  cheap,  and  merchants  to  trade  on  small 
profits.* 

*  Two  or  three  facts  on  this  subject  exist  in  the  United  States 
which  create  surprize  to  foreigners,  and  are  often  little  under- 
stood by  our  own  citizens.  The  price  of  labor  in  this  country  is 
much  higher  than  in  Europe  ;  yet  the  products  of  the  soil  can 
always  be  sent  thither  to  a  good  market.  On  the  other  hand, 
the  expense  attending  the  erection  of  manufactures  is  so  great 
as  hitherto,  except  in  a  few  instances,  to  prevent  their  estab- 
lishment. The  cause  of  both  these  effects  is  to  be  found  in  the 
great  quantity,  and  cheapness  of  our  new  and  fertile  lands. 
One  man  is  able  to  spread  his  labor  over  a  much  more  ex- 
tended surface  in  the  ample  plantations  of  America,  than  can 
be  done  in  the  small  and  circumscribed  districts,  into  which  the 
soil  must  be  divided  in  Europe.  And  though  the  agriculture  is 
less  perfect,  yet  the  great  scope  which  is  under  cultivation 
throws  off,  in  the  end  of  the  year,  a  more  abundant  product  to 
the  industry  of  each  husbandman. 


sir 

OF  MONET. 

Trade,  in  the  early  and  rude  ages  of  the  world  was  car- 
ried on  by  barter,  or  the  exchange  of  one  species  of  goods 
for  another.  This  was  found,  in  time,  to  be  inconvenient, 
especially  after  exchanges,  in  the  progress  of  society,  ne- 
cessarily became  frequent.  It  was  requisite,  therefore,  to 
discover  some  medium  of  commerce  which  should  be  Avill- 
ingly  received,  and  acknowledged  as  a  universal  sign,  and 
standard  of  value.  This  medium,  in  order  to  subserve 
the  various  purposes  of  trade,  and  to  render  it,  at  all 
times,  a  safe  and  convenient  mean  of  exchange  ought  to 
possess  the  following  properties.  It  ought,  in  the  first 
place,  to  have  an  intrinsic  value,  and  to  be  in  itself  an  ob- 
ject of  desire,  and,  therefore,  a  proper  subject  of  com- 
merce, as  well  as  a  sign  of  wealth,  and  a  standard  of  the 
value  of  all  other  things.  This  primary  quality  is  requi- 
site, because  no  authority  can  give  a  value  to  that  which 
possesses  none  in  the  public  estimation.  It  ought,  in  the 
next  place,  to  be  rare,  that  a  small  portion  of  it  may  rep- 
resent a  large  quantity  of  other  commodities,  and  be  easily 
portable  for  the  convenience  of  trade.  It  should,  for  the 
same  purpose,  be  divisible  into  minute  parts.  And,  finally 
it  ought  to  be  durable,  that  it  may  not  be  liable  to  decay 
by  being  exposed  to  the  air,  nor  be  easily  worn  and  wast^ 
ed  in  passing  from  hand  to  hand. 


348 

The  precious  metals,  and  they  alone,  possess  all  these 
properties ;  and,  therefore,  have  been  employed  in  all  na- 
tions, where  they  could  be  procured,  as  the  common  sym- 
bols of  value.   It  has  been  frequently,  though  erroneously, 
supposed  that,  intrinsically,   money  possesses  no  value, 
though  the  sign  of  all  value  ;  and  this  was  long  a  vulgar 
theoretic  opinion.    But  gold  and  silver  have  their  price  in 
trade  as  well  as  other  commodities ;  and,  like  them,  this 
price  depends  upon  their  relative  quantity.   If  all  the  gold 
and   silver  in  the  mercantile  world  were  placed  on  one 
side,  and,  on  the  opposite  side,  all  other  goods,  the  Avhole 
value  of  the  one  would  be  equal  to  the  whole  value  of  the 
other,  and  any  proportional  quantity  of  the  one,  would  be 
equal  to  a  similar  proportion  of  the  other.   Increase  the 
aggregate  quantity  of  the  precious  metals,  and  each  piece 
will  then  possess  a  smaller  relative  value.   If,  in  the  pro- 
gress of  society,  an  improved  industry  and  ingenuity  in- 
crease the  quantity  and  perfection  of  the  products  and 
manufactures  of  trading  nations,  the  quantity  of  money 
remaining  the  same,  each  piece  will  acquire  an  increased 
price ;  that  is,  it  will  purchase  an  additional   quantify, 
either  in  number,  or  in  fineness,  of  those  articles  which 
are  brought  by  commerce  into  the  market.   This  constant 
ratio  of  things  no  law,  or  authority  of  the  state  can  alter 
without  violence  to  liberty,  and  manifest  injury  to  the  in- 
terests of  trade.  It  is  a  mistaken  policy  in  the  govern- 


349 

ineiit  ever  to  attempt  to  regulate  the  prices  of  the  market, 
farther  than  to  prevent  fraud  in  the  genuineness,  the 
measure,  or  the  weight  of  the  articles  brought  into  it. 
Every  arbitrary  regulation,  or  attempt  to  change  the  na- 
tural proportions  between  money,  and  other  merchandize, 
especially,  of  provision  in  a  season  of  scarcity,  will  usu- 
ally prove  as  abortive  as  it  would  be  pernicous  if  it  could 
be  carried  into  effect.  This  assumed  power  over  the  free- 
dom of  the  merchant,  tends  to  destroy  industry,  and  in- 
crease the  distressing  want  for  which  it  is  proposed  as 
the  mistaken  remedy.  If  scarcity  produces  an  alarming 
augmentation  of  priees,  that  very  circumstance  holds  out 
the  speediest  prospect  of  relief.  It  awakens  industry,  and 
invites  a  prompt  supply  from  every  quarter  whence  it  can 
be  derived,  till  the  increasing  quantity  in  the  market 
again  reduces  the  price  towards  its  natural  standard.  AH 
compulsion  contributes  to  drive  the  means  of  relief  out 
of  the  market,  and  to  continue  the  public  distress.  It 
were  better,  in  such  a  case,  to  afford  a  bounty  on  provi- 
sion than  to  check  the  freedom  of  its  sale,  by  limiting  its 
price. 

or  COINAGE. 

The  quantity  and  proportion  of  the  metals  is  determin- 
ed by  weight.  But,  on  account  of  the  inconvenience- and 
inaccuracy  which  must  attend  weighing  buJIionin  all  the 


350 

multiplied  transactions  of  commerce,  after  nations  have 
arrived  at  an  advanced  period  of  civilization,  the  govern- 
ment usually  takes  that  care  upon  itself,  and  affixes  its 
own  signature  and  attestation  to  the  weight  of  each  piece 
of  money  in  the  mint.*  Coinage  is  the  impression  of  a 
known  public  mark  on  the  respective  pieces  of  gold  and 
silver  in  circulation,  thereby  pledging  the  public  faith  for 
the  exactness  of  the  weight. 

A  certain  known  proportion  of  alloy  is  usually  mixed 
in  coining  wilh  the  precious  metals,  to  increase  their 
durability,  and  to  render  the  size  of  the  small  pieces  more 
convenient  in  passing  them  in  tale.  The  practice  of  in- 
creasing the  quantity  of  alloy,  or  of  raising  the  denomi- 
nations of  the  coins,  which  have  been  sometimes  resorted 
to  in  arbitrary  governments,  in  order  to  pay  the  public 
debts  with  less  than  a  just  proportion  of  gold  and  silver, 
is  a  dishonest  expedient,  as  dangerous  to  the  prince,  as  it 
is  void  of  faith  to  the  nation. 

BILLS    OF    EXCHANGE. 

In  the  commercial  transactions  between  nations,  money 
must  often  necessarily  be  remitted  from  one  to  another. 
This  necessity  has  given  rise  to  bills  of  exchange,  to  save 

*  This  denomination  is  derived  from  the  low  latin  term  mon- 
eta,  which  signifies  both  the  stamp  upon  coin,  and  the  labora- 
tory whence  it  is  issued.  It  comes  to  the  English  through  the 
medium  of  Dutch  word  tnunte. 


351 

the  risks  of  the  sea.  A  bill  is  no  more  than  a  draft  for 
the  money  which  may  be  owing  from  one  merchant,  to 
satisfy  the  demand  which  may  be  due  to  another.  When 
equal  sums  are  to  be  remitted  from  one  nation  to  another, 
bills  may  be  purchased  at  par.  "When  greater  sums  are 
due  from  one  than  are  to  be  received  from  the  other,  the 
nation  against  which  the  balance  is  found  to  lie,  must 
make  its  remittances  in  kind,  or  must  pay  an  additional 
sum  for  bills  ;  which  sum  must  be  estimated  according  to 
the  risks  of  remitting.  The  exchange,  therefore,  is 
against  that  nation,  and  bills  must  be  purchased  at  a 
price  above  par.  The  balance  of  trade  between  two  na- 
tions may,  of  course,  be  generally  determined,  at  any 
period,  by  the  rate  of  exchange. 


552 


LECTURE  XXX. 


OF  THE  1AW  OF  NATURE  AND  NATIONS. 

Of  the  law  of  nature  and  nations — It  has  attained  its  per- 
fection only  in  modern  times — The  three-fold  division 
of  that  law — Of  the  rules  and  principles  relative  to  a 
state  of  peace — Of  the  independence  and  equality  of  na- 
tions— Of  intriguing  with  parties,  or  aiding  factions — 
The  right  of  a  nation  to  use  its  own  resources,  to  its 
own  advantage,  of  making  alliances,  treaties,  without 
affording  just  cause  of  umbrage  to  others — Treaties  not 
annulled  by  a  revolution  in  the  government  of  either 
nation — Treaties  in  the  United  States  the  supreme  law 
of  the  land — The  interpretation  of  them  vested  in  the 
supreme  court — Of  the  extent  of  the  jurisdiction  of 
states — Of  the  intercourse  and  commerce  of  nations — 
Of  ambassadors  or  national  representatives. 

NATIONS,  in  their  sovereign  capacity,  may  be  con- 
sidered in  reference  to  one  another,  as  individual  and 
moral  persons,  subject,  in  their  mutual  intercourse,  to 
the  rules  of  reason  and  humanity  ;  and  amenable  to  no 
common  tribunal  but  the  opinion  of  the  world.  The  laws 
of  justice  ought  to  subsist  among  all  mankind.  And  the 
interest  of  human  nature  requires  that  there  should  exist 


of  exchange,  and  transit  from  hand  to  hand.  It  is  gene- 
rally esteemed,  and  perhaps  justly,  a  tax  of  the  most 
odious  kind.  For,  although  duties  collected  by  excise 
may  not  be  actually  so  heavy  as  those  drawn  from  cus- 
toms and  imposts  upon  trade,  they  are,  notwithstanding, 
more  directly  felt  as  a  tax. — Besides,  the  methods  neces- 
sarily employed  to  discover  exciseable  goods  are  peculiarly 
obnoxious  to  public  opinion,  and  to  the  private  peace,  and 
tranquility  of  families. 

From  two  facts  which  very  frequently  occur, — that 
the  heaviest  taxes  are   paid   by  free   states ;  and  that 
an  additional  tax  laid   upon   a  particular  manufacture, 
has  been  followed  by  an  improvement  in  the  quality,  and 
an  augmentation  in  the  quantity  of  the  manufacture,  it 
has  passed  into  a  maxim  with  some  political  writers,  that 
the  increase  of  taxes  is  beneficial  to  a  state. — It  is  true, 
that  free   states,  from  that  spirit  of  industry  and  enter- 
prize  which  accompanies  the  possession  of  liberty,  are 
more  able  to  support  the  weight  of  taxes  than  arbitrary 
governments  ;  and  being  commonly  smaller  in  extent,  and 
surrounded  by  ambitious  and  dangerous  neighbors,  they 
are  often  called  to  greater  exertions  in  defence  of  their 
rights,  and  their  existence.    But  the  ability  to  support 
such  impositions  does  not  surely  arise  from  any  peculiar 

tendency  in  taxation  to  augment  the  monied  resources  of 
vol.  ii.  v  u 


*« 


35S 

the  country,  but  from  the  nature  ofthe  government  which, 
is  the  nurse  of  industry,  ami  of  every  useful  effort  of  hu- 
man talents.  And  the  augmentation  of  taxes  does  not 
arise  from  any  idea  in  their  rulers,  of  their  beneficial  in- 
fluence on  the  civil  or  commercial  interests  of  the  state, 
but  from  the  necessity  of  their  situation. 

It  may  likewise  be  remarked  that  a  small  and  gradual 
increase  of  taxes,  within  moderate  bounds,  may,  on  some 
occasions,  be  found  to  stimulate  industry,  and,  indirectly, 
to  contribute  to  the  improvement  of  particular  arts. — 
To  see  how  this  may  be  effected  let  us  attend  to  the  fol- 
lowing considerations. 

There  is  a  certain  portion  of  labor  requisite,  and  suffi- 
cient to  supply  to  each  man  the  absolute  necessaries  of  life, 
far  enough  below  the  utmost  exertion  of  his  talents.  When 
he  puts  forth  his  efforts  to  their  full  power,  they  are  able, 
besides  necessaries,  to  furnish  him  with  a  large  supply  of 
convenient,  comfortable,  and  even  elegant  accommodation. 
Between  these  points,  therefore,  the  moderate  labor,  on 
the  one  hand,  which  is  sufficient  to  supply  the  necessary 
provisions  of  life,  and  the  highest  efforts  of  industry,  on 
the  other,  which  may  yield  a  large  surplus  of  convenient 
accommodation,  taxes  may  be  gradually  augmented.  And 
as  men  may  often  want  stronger  motives,  than  simply  the 
prospect  of  a  little  additional  gain,  to  stimulate  them  to 


339 

put  forth  all  their  powers,  these  motives  may  sometimes 
be  found  in  the  necessity  of  furnishing  the  taxes  demand- 
ed by  the  state.  But  this  rule  ought  carefully  to  be  ob- 
served, that  whenever  the  public  burdens  are  to  be  aug- 
mented, it  should  be  done  by  very  small  and  gradual  in- 
crements, that,  in  the  process  of  the  operation,  the  people 
may  have  leisure  to  learn  by  experience  to  feel  their  own 
abilities.  Great  and  sudden  augmentations  of  their  taxes 
are  calculated  only  to  alarm  and  discourage  them. 

I  add  that  the  maximum  of  taxation,  or  the  highest 
surplus  for  public  use,  which  the  industry  of  the  nation 
can  yield,  after  the  necessary  wants  and  ordinary  conve- 
nieneies  of  life  have  been  supplied,  ought  seldom  to  be 
aimed  at  by  the  rulers  of  a  state.  Human  nature  kept 
constantly  at  its  full  exertion,  will  become  fatigued  and 
dispirited,  and  be  ready  at  length  to  bless  a  less  free  gov- 
ernment, relieved  from  the  oppressive  weight  of  those 
fiscal  impositions.  The  state,  moreover,  ought  not  to  be 
always  at  its  utmost  effort.  Emergencies  will  arise  which 
will  require  extraordinary  exertions ;  and  strength  ought 
to  be  left  to  meet  these  demands. 

OF  LAWS  RELATIVE  TO  COMMERCE. 

Another  of  the  most  important  operations  of  govern- 
ment respects  the  encouragement  and  regulation  of  com- 
merce.   Commerce  consists,  in  the  exchange  of  the  pro- 


3iO 

duets,  or  the  labor  of  one  country  for  those  of  another. 
It  is  founded  on  the  mutual  wants  of  mankind,  real  or 
factitious,  and  is  ready  always  to  furnish  a  supply  for 
those  wants  which  it  either  finds,  or  creates.  By  afford- 
ing a  vent  for  the  produce  of  labor,  and  procuring,  in  re- 
turn, the  means  of  desirable  accommodation,  it  increases 
industry,  promotes  the  arts,  and  thereby  augments  the 
wealth  of  a  state.  Commerce  is  the  handmaid  of  agricul- 
ture, and  the  arts,  and  by  distributing  their  productions 
over  the  world,  prompts  the  industry  of  the  husbandman, 
and  quickens  the  ingenuity  of  the  artizan. 

Commerce  is  either  internal,  consisting  of  the  traffic 
which  takes  place  among  the  citizens  of  the  same  state, 
— or  external,  which  consists  in  that  subsisting  with  for- 
eign nations.  The  more  extensive  a  state  is,  of  the  more 
value  to  it  commonly  is  its  internal  commerce,  if  it  pos- 
sesses the  means  of  a  convenient  interchange  of  commo- 
dities through  seas,  rivers,  or  canals,  and  the  less  does  its 
prosperity  depend  on  foreign  traffic.  This  is  an  advan- 
tage which  the  United  States  may  possess  in  an  eminent 
degree,  extended  as  they  are  through  various  climes,  and 
intersected  by  numerous  rivers,  if  they  are  wise  enough 
to  preserve  their  union,  and  liberal  enough  to  favor  and 
assist,  without  jealousy,  the  natural  advantages  enjoyed 
by  each,  which  may  ultimately  redound  to  the  benefit  of 
the  whole,  and  of  every  part. 


Sil 

Free  states  whose  territories  are  small,  and  manners 
simple,  if  conveniently  posited  to  enter  into  the  career  of 
trade,  are  generally  inclined  to  undertake  an  economical 
commerce ;  that  is,  to  become  carriers  for  the  rest  of  the 
world  who  either  need,  or  are  willing  to  receive,  the  aid 
of  their  ships.  In  this  species  of  commercial  intercourse, 
it  is  the  interest  of  an  economical  republic  to  consider  the 
wants  and  the  superfluities  of  all  nations,  and  to  avail 
itself  of  both.  This  species  of  commerce  can  be  main- 
tained, only  by  the  smallness  of  its  profits.  It  exists 
by  underselling  others.  Its  present  gains  are  small ;  but 
by  gaining  constantly,  and  drawing  its  resources  from 
every  quarter  of  the  world,  the  idtimate  profit  to  the  na- 
tion may  be  great. 

Civil  liberty  is  absolutely  necessary  to  the  existence  of 
a  flourishing  commerce.  Freedom  is  the  nurse  of  industry 
and  enterprize ;  and  in  the  bosom  of  liberty  alone  is  the 
property  of  the  merchant,  at  all  times,  sufficiently  secure 
from  the  grasp  of  power.  In  absolute  monarchies,  the 
humble  and  industrious  occupations  of  the  merchant  are 
held  in  contempt  by  the  superior  orders  of  society.  But 
under  the  protection  of  a  free  government,  merchants 
have  been  found  capable  of  the  grandest  enterprizes.* 

*  The  tendency  of  commerce  is  to  create  civility  and  refine- 
ment of  manners,  by  opening  a  free  and  liberal  intercourse 
-among  all  nations  ;  at  the  same  time,  it  begets  a  certain  spirit  of 


3i2 

The  laws  and  spirit  of  a  nation  should  annex  a  dignity 
and  respectability  to  the  character  and  profession  of  a 
merchant  in  order  to  favor  the  success  of  trade. 

Those  laws  are  founded  in  good  policy  which  encourage 
trade  with  wealthy  and  pacific  nations  who  can  take  the 
greatest  quantity  of  our  produce  or  manufactures  on  the 
best  terras  ;  or  who  can  furnish  their  own  merchandizes 
at  .the  cheapest  rates,  and  take  the  largest  proportion  of 
ours  in  return. 

Laws  are  impolitic  which  attempt  to  restrict  trade  to 
particular  nations,  unless  it  he  for  a  time,  with  a  view  to 
compel  advantages  from  others  which  are  unreasonably 
withheld.  Competition  alone  can  establish  the  just  rates 
of  merchandizes,  and  reduce  the  profits  of  trade  to  the 
most  equitable  standard. 

exact  justice,  and  habitual  calculation  of  interest,  which  is  un- 
friendly to  the  highest  polish  and  ease  of  social  manners,  and  to 
the  hospitable  reception  of  strangers,  except  where  some  inte- 
rest recommends  their  admission.  It  deserves,  however,  to  be 
remarked,  in  order  to  take  off  the  unjust  prejudices  which  are 
apt  to  be  entertained  by  different  people  against  one  another, 
on  the  score  of  their  reception  abroad,  that  hospitality,  and  in- 
deed all  other  national  virtues,  or  defects,  arise,  not  from  the 
differences  between  nations  as  they  are  men,  but  as  they  are  af- 
fected by  the  stale  of  society.  The  characters  of  men  are  formed 
by  the  circumstances  in  which  they  are  placed.  And  those  na- 
tions who  entertain  the  greatest  contempt  for  each  others  man- 
ners, would,  with  exchange  of  situations,  exchange  characters. 


343 

The  institution  of  banks,  when  properly  restricted,  is 
beneficial  to  trade,  by  facilitating  a  reasonable  credit  to 
merchants,  by  which  they  are  enabled  to  encourage  in- 
dustry, and  to  extend  the  useful  cnterprizes  of  commerce.* 
On  the  other  hand,  the  multiplication  of  banks  beyond 
the  real  necessities  of  trade,  or  unsupported  by  an  ade- 
quate capital  of  bullion,  becomes  a  pernicious  evil,  by 
augmenting  unduly  an  artificial  medium  of  trade,  and 
thereby  increasing  the  price  of  labor,  and  of  all  com- 
modities in  the  market,  and  at  length  defrauding  the 
eredit  which  had  been  reposed  in  them. 

The  incorporation  of  exclusive  companies  of  merchants 
for  managing,  and  enjoying  the  sole  benefit  of  any  partic- 
ular branch  of  commerce,  is  contrary  to  the  rules  of  good 
policy,  unless  the  commerce  be  of  such  magnitude,  and 
attended  with  such  expense  and  risks,  that  it  cannot  be 
advantageously  pursued  by  individuals.  When  such  a  case 
occurs,  the  privilege  of  entering  into  the  company  ought 
to  be  extended  as  far  as  possible.  Another  important  re- 
quisite is,  that  the  charter  of  incorporation  should  be  limi- 
ted to  a  convenient  term  of  years,  in  such  manner  that 
the  earliest  opportunity  may  be  embraced  for  throwing 

*  For  a  clear  and  concise  elucidation  of  the  nature  and  effects 
of  banking  systems,  I  cannot  refer  you  to  a  more  useful  work 
than  a  small  treatise  by  Dr  Erick  Bollman  of  Philadelphia, 
entitled  Paragraphs  on  Banks. 


open  the  trade,  and  extending  its  privileges. — The  Eng- 
lish East-India  company  have  held  a  monopoly  of  the 
trade  of  the  Indies  too  long  for  the  benefit  of  the  nation. 

Commerce  ought  to  he  as  free  as  the  ocean  on  which  it 
is  borne,  or  the  winds  which  waft  it.  The  interest  of 
merchants  will  always  find  the  most  profitable  channels 
of  trade  better  than  the  foresight  of  the  legislator.  There 
may  frequently,  however,  exist  a  necessity  for  his  inter- 
ference to  secure  those  privileges  of  trade  to  his  nation 
of  which  the  caprice,  or  policy  of  others  may  be  inclined 
to  deprive  it.  Each  nation  possessing  the  control  over  its 
own  commerce  may  frequently  subject  foreigners  to  in- 
convenient restraints  in  their  intercourse  with  it.  Hence 
the  utility  of  commercial  treaties  with  those  states  whose 
wrong  policy  may  incline,  and  whose  situation  may  ena- 
ble them,  without  the  intervention  of  such  contracts,  to 
impose  peculiar  disadvantages,  on  some  branches  of 
commerce,  or  to  subject  it  to  entire  interdictions.  But 
the  general  maxim  that  trade  ought  to  be  free,  and  com- 
mitted almost  wholly  to  the  guardianship  and  direction  of 
the  interested  vigilance  of  the  merchant,  is  not  inconsist- 
ent with  another  principle,  that  the  policy  of  a  nation 
may  sometimes  wisely  impose  certain  restrictions  dictated 
by  the  spirit  of  commerce  itself  in  order  to  introduce  a 
new,  or  to  tbsler  a  growing  manufacture.  On  this  prin- 
ciple the  exportation  of  wool,   which  had  formerly  been 


353 

some  known  and  general  principles  of  equity  to  which, 
by  the  tacit  consent  of  custom,  or  the  explicit  stipulations 
of  treaty,  they  should  agree  to  submit  in  their  conduct  to- 
wards one  another. 

On  this  subject,  there  naturally  arise  two  important 
questions  : — In  the  first  place,  are  there  any  such  princi- 
ples which  have  been  acknowledged  to  be  obligatory  on 
all  nations  ? — and,  in  the  next  place, — by  what  authority 
are  they  prescribed  ?  and  by  what  sanction  enforced  ? 

In  answer  to  the  former  question ;  it  has  already  been 
observed,  that  independent  nations  may  justly  be  viewed 
as  standing  in  the  same  relations  to  one  another,  as  inde- 
pendent individuals,  previously  to  the  existence  of  civil 
society,  possessing  the  same  rights,  and  subject  to  the 
same  obligations.  This  state  has  been  denominated  the 
state  of  nature.  And  these  rights  and  obligations  consti- 
tute the  basis  of  the  law  of  nature.  But  because  indi- 
viduals are  rarely,  if  ever,  found  actually  existing  in  this 
state,  and  its  laws  are  almost  exclusively  applicable  to 
mankind  in  their  national  capacities,  hence  the  additional 
title  has  been  given  to  it  of  the  law  of  nations. 

The  most  rude  and  barbarous  people  have  not  been 

without  some  rules,  to  ascertain  the  several  rights,  and 

regulate  the  mutual  intercourse  of  their  respective  tribes. 
vol.  ii.  t  v 


3d* 


But  it  is  only  among  civilized  nations  whose  manners 
and  political  institutions  nearly  resemble  one  another, 
and  who  have  been  long  connected  together  by  the  most 
liberal  intercourse,  mutually  imparting  their  improve- 
ments in  letters  and  in  arts,  that  any  regular  and  entire 
code  can  be  expected  on  this  subject.  Indeed,  it  is  only  in 
modern  times,  and  among  the  enlightened  nations  of 
Europe,  that  this  law  has  taken  the  form  of  a  science. 
Among  the  ancients,  with  whom  stranger  and  enemy  were 
almost  synonymous  terms,  it  was  hardly  known,  till  the 
latter  ages  of  the  Roman  empire.  The  civil  law  was,  at 
that  period,  brought  to  a  state  of  high  perfection  :  and 
some,  although,  as  yet,  but  imperfect,  principles  of  the 
law  of  nations  were  acknowledged  as  forming  apart  of  the 
doctrines  of  natural  reason. 

In  modern  Europe,  the  diffusion  of  letters,  the  refine- 
ment of  manners,  the  influence  of  religion,  and  a  spirit  of 
humanity  resulting  from  a  combination  of  all  these  causes, 
together  with  ideas  and  interests  arising  out  of  the  most 
enlarged  commercial  intercourse  which  has  ever  existed 
in  the  world,  have  contributed  to  give  an  extension,  and 
perfection  to  the  law  of  nature  and  nations  which  it  had 
never  before  attained.  Grotius  has  the  honor  of  leading 
the  way  on  this  important  subject,  in  his  treatise  dejure 
helli  et  pads.  After  him  his  commentator  Barbeyrac, 
Burlamaqui,  Puffendorf,  Wolfius,  Vattel,  Van  Bynker- 


355 

shoeck,  have  acquired  the  highest  reputation,  and  have 
become  authorities  to  which  even  nations  have  conde- 
scended to  appeal  in  the  decision  of  their  controversies. 
They  have  left  little  to  be  desired  in  the  science.  And  in 
the  respect  paid  to  the  writings  of  these  illustrious  men, 
we  have  often  seen  the  pride  of  power  stoop  to  the  illumi- 
nation and  persuasion  of  wisdom. 

To  the  second  enquiry,  by  what  authority  is  the  law  of 
nature  and  nations  prescribed  ?  and  by  what  sanction  is 
it  enforced  on  independent  communities  ? — I  answer, — It 
is  prescribed  by  custom,  and  the  implicit  or  positive  con- 
sent of  all  the  nations  of  Europe,  and  to  these  we  may 
now  add  the  United  States  of  America,  and  the  European 
dependencies  in  the  East  and  West  Indies,  who  have  all 
agreed  to  submit  nearly  to  the  same  rules. 

In  this  age  of  refinement,  and  literature,  learning  has 
shed  such  an  extensive  illumination  through  society,  and 
learned  men  have  acquired  such  preponderance,  that 
their  opinions  have  become,  in  a  great  measure,  a  stand- 
ard of  civil  and  national  policy,  and,  in  many  respects,  a 
laic  to  princes  and  states.  Their  authority  is  resorted  to, 
and  often  admitted  as  decisive  in  the  determination  of  con- 
troversies between  the  most  powerful  kingdoms.  But  be- 
sides this  indirect  authority,  the  greater  part  of  the  prin- 
ciples of  the  law  of  nature  and  nations,  as  they  have  been 


356 

proposed  and  illustrated  by  the  most  eminent  political 
philosophers,  have,  within  a  short  period,  been  explicitly 
reeognized  in  the  public  treaties  of  Europe.  Principles 
thus  recognized  receive  the  sanction  and  force  of  positive 
laws.  Others  which  have  been  admitted  only  by  long 
custom,  compose  the  implicit,  or  what  Vattel  calls  the 
necessary  law  of  nations.  Of  these  laws  the  natural  sanc- 
tion is  national  convenience  ;  or,  if  they  are  infringed,  the 
fear  of  the  just  resentment  of  other  nations.  Fairness, 
justice,  and  good  faith,  are  not  less  the  public  interest  of 
states,  than  the  private  advantage  of  individuals.  Injus- 
tice and  falsehood  may  profit  for  a  moment ;  but,  in  the 
end,  are  ever  found  to  be  injurious  to  the  true  interests  of 
the  great  communities  of  mankind. 

DIVISION  OF  THE  IAW  OF  NATURE  AND  nXStIONS. 

The  law  of  nature  and  nations  does  not  respect  the  in- 
ternal policy,  or  institutions  of  state  ;  but  is  occupied  only 
with  their  external  rights,  and  obligations,  in  their  rela- 
tions with  other  states.  These  relations  are  threefold — of 
peace — of  war — and  of  neutrality.  This  law  is  according- 
ly divided  into  three  parts — the  first  containing  rules  and 
principles  relative  to  a  state  of  peace — the  second,  rules 
and  principles  relative  to  a  state  of  war — and  the  last, 
those  which  relate  to  a  state  of  neutrality.  On  each  of 
these  subjects,  all  that  I  can  propose  to  you  is  to  give 


H57 

some  openings  to  llie  science  in  the  prosecution  of  your 
future  studies. 

OF  RULES  AND  PRINCIPLES  RELATIVE  TO  A  STATE  OP 
PEACE. 

These  principles  respect  chiefly  the  independence  and 
equality  of  nations  in  their  right  of  ahsolute  control  over 
their  own  political  arrangements, — the  extent  of  their 
several  jurisdictions,— their  privileges  or  intercourse  and 
commerce  with  one  another, — and,  finally,  their  mutual 
rights  of  embassy  and  representation. 

The  independence  of  states,  and  their  equality  in  rights 
and  privileges,  lies  at  the  foundation  of  the  law  of  nations. 
And  this  perhaps  is  a  proof  that  this  law,  which  is  of  so 
modern  a  date,  has  taken  its  origin  among  nations  which, 
in  fact,  are  nearly  equal  in  geographical  extent,  and  in 
physical  power.  For  it  is  unhappily  true  in  the  history  of 
nations,  that  the  justest  claims  are  seldom  conceded  by 
such  powerful  bodies,  to  equity  alone,  when  they  possess 
force  sufficient  to  violate  them  with  impunity. 

The  rights  which  result  from  the  principle  of  the  in- 
dependence and  equality  of  states  suffer  no  change,  on  ac- 
count of  their  greater  or  less  degree  of  population,  wealth, 
or  territorial  extent.  Among  these  rights  the  most  im- 
portant is  that  of  establishing,  or  preserving  in  perfect 
integrity,  their  own  forms  of  civil  policy,  free  from  the 


358 

control,  or  interference  of  any  other  power.  No  right  can 
be  more  precious  to  a  nation.  All  attempts,  therefore,  to 
modify  or  change  an  existing  government ;  or  to  prevent 
a  nation,  when  it  pleases,  to  alter,  amend,  or  change  its 
own  system,  under  any  pretence,  that  such  change  is  in- 
consistent with  the  interest  of  any  neighboring  power,  is 
a  palpable  violation  of  the  most  sacred  rights  of  nations. 

The  same  principle  condemns  the  intriguing  of  foreign- 
ers with  parties  which  may  spring  up  within  a  state.  And 
condemns  still  more  forcibly  the  affording  any  encourage- 
ment or  aid  to  a  factious  portion  of  the  citizens  to  op- 
pose, or  disturb  the  existing  order  of  the  government  un- 
der which  they  live. — On  this  ground,  the  world  has  so 
justly  and  strongly  reprobated  the  conduct  of  the  empress 
of  Russia,  the  emperor  of  Germany,  and  the  king  of  Prus- 
sia for  their  unwarantable  interference  in  the  affairs  of 
Poland ;  and  especially  for  their  atrocious  dismember- 
ment of  that  republic,  and  afterwards  presuming  to 
dictate  a  form  of  government  for  the  remaining  provinces 
without  the  consent  of  the  people  who  were  to  be  affected 
by  it.  The  ancient  Romans  were  infamous  for  intermed- 
dling in  the  internal  disturbances  of  the  neighboring  na- 
tions, till  they  had  broken,  in  succession,  and  overturned 
the  independence  of  every  kingdom,  and  republic  within 
the  reach  of  their  arms.  On  the  same  principle,  the  at- 
tempt of  the  combined  powers  of  Europe  to  prescribe  a 


359 

government  to  France,  although  it  was  in  the  most  turbu- 
lent period  of  her  frenzy,  and  their  ostensible  motive  was, 
in  part,  their  own  preservation,  was  most  justly  reprehen- 
sible. And  they  have  since  been  reaping  the  fruits  of 
their  folly  ;  having  forced  her  into  the  career  of  foreign 
conquest,  of  which  they  themselves  have  become  the  vic- 
tims, instead  of  leaving  her,  as  they  ought  to  have  done, 
to  spend  her  fury,  and  the  unnatural  force  of  her  insani- 
ty on  her  own  limbs. 

The  principles,  however,  which  have  been  just  laid 
down,  do  not  prohibit  one  state,  in  certain  circumstances, 
from  yielding  succors  to  another,  which  is  oppressed  by 
its  government,  or  which,  on  the  other  hand,  is  afflicted 
by  a  dangerous  insurrection.  Yet  this  case  requires  the 
most  profound  consideration,  and  the  most  dispassionate 
circumspection,  lest,  under  the  pretence  of  assisting  a  na- 
tion in  her  affliction,  a  faction  only  should  be  cherished, 
or  a  tyranny  protected. 

"When  civil  dissentions  exist  in  a  state  a  principle  of 
good  neighborhood,  and  of  justice,  requires  that  no  aid 
should  be  afforded  by  a  foreign  power  to  any  party,  un- 
less it  is  clearly  known  to  embrace  an  undoubted  majori- 
ty of  the  people,  who  are  organized  in  such  a  manner  as 
to  afford  a  reasonable  prospect  of  their  being  able  to  main- 
tain their  government  $  or,  unless  there  is  the  strongest 


360 

ground  to  believe  that  those  suecors,  and  the  change  that 
is  aimed  to  be  effected  by  them,  will  contribute  to  the 
happiness,  and  meet  the  approbation  of  the  nation  when 
restored  to  a  state  of  tranquility.  For  those  moral  con- 
siderations ought  to  be  felt  to  be  as  obligatory  on  nations 
as  on  individuals. 

On  such  principles  Ave  vindicate  the  aids  granted  by 
France  and  received  by  the  people  of  America  during  the 
conflicts  of  that  revolution  which  ultimately  established 
the  liberties  and  independence  of  the  nation. 

From  the  independence  and  equality  of  nations  results, 
in  the  next  place,  the  right  of  using  their  own  resources 
and  advantages,  according  to  their  pleasure  for  their  own 
interest,  provided  that,  in  pursuing  these  interests,  they 
do  not  infringe  upon  the  equal  rights  of  others.  They 
have  a  right  to  admit  one  nation  to  the  participation  of 
greater  privileges,  within  their  territories,  than  another  j 
and  reciprocally  to  yield  and  take  such  advantages  as  they 
conceive  to  be  most  for  their  own  benefit,  which  use  of 
their  rights  ought  not  to  afford  to  those  from  whom  they 
are  withheld,  any  just  cause  of  offence.  For  this  purpose, 
they  may  enter  into  alliances,  and  form  national  conven- 
tions and  treaties  with  other  states,  which  may  materi- 
ally alter  the  relations  formerly  existing  between  them, 
and  mutually  create  new  rights  and  obligations.    Such 


361 

national  compacts,  when  once  made  under  the  proper  au- 
thorities, impose  duties,  and  create  rights  of  the  most  sa- 
cred and  inviolable  nature.  They  cannot  justly  be  an- 
nulled, or  altered  at  the  supposed  interest,  or  convenience 
of  one  of  the  parties  ;  but  require,  for  the  purpose  of  any 
modification  or  change,  the  clear  and  explicit  consent  of 
all  who  were  engaged  in  the  original  contract.  And  if 
any  doubt  or  uncertainty  arise  in  their  interpretation,  jus- 
tice requires  that  the  most  fair  and  obvious  exposition 
be  given  to  their  terms ;  in  which  a  candid  and  equitable 
spirit  will  derive  great  assistance  from  considering  the  ob- 
jects originally  proposed  by  the  parties  to  be  respectively 
accomplished  by  the  treaty ;  the  evils  to  be  corrected,  or 
the  advantages  to  be  gained. 

In  the  United  States  treaties  concluded  by  the  Presi- 
dent and  Senate  are  made  the  supreme  law  of  the  land. 
The  national  judiciary  is,  consequently,  charged  with 
their  interpretation,  and  furnishing  the  rule  for  their  exe- 
cution within  the  jurisdiction  of  the  states.  This  is  a  mea- 
sure fraught  with  the  greatest  wisdom  and  equity ;  and 
peculiarly  calculated,  as  far  as  depends  on  the  United 
States,  to  preserve  these  important  conventional  laws  from 
infractions  occasioned  by  ignorance,  injustice,  or  ambi- 
tion. 

It  has  been  made  a  serious  question  in  the  law  of  na- 
tions,   whether  or  not  a  revolution  in  the  government  of 
vol.  ii.  z  z 


;}62 

any  people  ought  hi  justice  to  annul  the  obligation  of  a 
treaty  contracted  under  the  preceding  government  ?— .It 
is  sufficient  to  reply  that  a  treaty  is  a  convention  made 
with  the  nation,  and  not  with  the  men  who  may,  at  any 
time,  have  the  powers  of  government  in  their  hands. 
These  are  only  the  organs  by  which  one  political  body 
communicates  with  another.  The  organ  of  their  inter- 
course may  be  changed,  while  their  conventions  retain  all 
their  validity  ;  except  where  some  palpable  disingenuous- 
ncss,  mistake,  or  fraud,  appears  in  the  conduct  of  one,  or 
of  both  the  parties. 

OF  THE  EXTENT  OF  THE  JURISDICTION  OF  STATES. 

The  jurisdiction  of  a  state  extends  as  far  as  the  limits 
of  its  territory,  and  over  all  rivers,  lakes,  and  bays  in- 
cluded within  those  bounds.  The  territorial  limits  of 
countries  have  been  fixed  by  custom,  and  conven- 
tion with  neighboring  powers.  In  taking  possession  of 
new  and  uncultivated  regions,  and  exercising  or  claiming 
jurisdiction  over  them,  the  principle  of  convenience,  as 
formerly  explained,  must  be  regarded  ,•  and  treaties  with 
other  powers  who  occupy  portions  of  the  same  lands, 
must  ultimately  fix  their  respective  limits. — If  any  waters 
be  encompassed  by  the  territory  of  any  state,  the  jurisdic- 
tion of  that  state,  extends  equally  over  both  the  water, 
and  the  land. — If  a  river  or  a  bay  form  the  boundary  or 


part  of  the  boundary  between  two  states,  it  ought  to  be 
considered,  as  far  as  it  extends,  as  a  natural  high  way,  in 
which,  consequently,  the  navigation  should  be  free,  and 
common  to  both  nations  ;  unless  otherwise  restricted,  or 
appropriated  by  explicit  treaty.  If  a  river  be  divided  be- 
tween the  territories  of  two  nations,  so  that  the  one  inclo- 
ses its  mouth,  and  the  other  embraces  the  heads  of  the 
same  stream,  the  dictates  of  reason  evidently  require  that 
the  navigation  of  the  whole  should  be  equally  open  to 
those  who  inhabit  the  superior,  or  the  inferior  part  of  the 
channel,  each  giving  to  the  other  sufficient  national 
pledges  for  their  mutual  security,  and  for  the  peaceable 
and  friendly  use  of  that  liberty. 

Another  question  which  has  occupied  the  civilians  of 
Europe  with  no  small  degree  of  zeal  for  more  than  a 
century  past,  regards  the  extent  of  jurisdiction  which 
may  be  exercised  by  any  state  over  the  open  ocean.  Some 
nations,  on  account  of  their  great  maritime  superiority, 
or,  on  pretence  of  providing  for  the  safety  of  their  com- 
merce, or  their  dominions,  have  advanced  claims  to  pre- 
eminent control  over  particular  seas.  Great-Brilain  has 
pushed  her  demands  farther  than  any  other  nation  ;  and, 
by  the  haughtiness  with  which  they  have  been  urged,  has 
raised  to  herself  many  enemies.  The  ideas  of  mankind, 
on  this  subject,  however,  have,  for  a  considerable  time, 
been  growing  move  just  and  liberal.   The  ocean  is  re- 


36* 

garded,  by  most  writers,  as  the  universal  highway  of  na- 
ture, and  equally  free  for  the  use  of  all  nations.  Yet,  as 
every  state  is  justly  expected  to  extend  its  protection 
against  all  hostile  aggressions,  not  only  to  its  subjects, 
and  friends,  but  even  to  strangers  within  the  control  of 
its  power,  its  jurisdiction  is  admitted  to  extend  into  the 
sea  as  far  as  the  force  of  its  arms  can  reach.  And  this 
limit,  since  the  invention  and  use  of  fire-arms,  has  been 
generally  interpreted  to  mean,  the  ordinary  range  of 
cannon  shot.  The  United  States  of  America,  that  there 
may  be  no  uncertainty  in  a  boundary  which  might  other- 
wise be  too  vague,  have  fixed  it  at  one  marine  league  from 
the  shore. 

OF  THE  INTERCOURSE  AND  COMMERCE    OF  NATIONS. 

As  the  law  of  nations  is  founded  on  the  natural  obliga- 
tions of  mankind,  and  the  actual  desire  among  all  civilized 
people,  of  extending  as  far  as  possible  the  ties,  and  good 
offices  of  humanity,  as  well  as  to  promote  their  mutual 
interests,  the  privileges  of  intercourse  and  commerce  be- 
tween all  the  various  states  of  the  world  should  be  ren- 
dered as  liberal,  and  extensive  as  is  consistent  with  their 
common  safety. 

Strangers  cannot  claim  admission  into  a  foreign  state, 
by  the  law  of  nations,  as  a  perfect  right ;  \ct,  agreeably  to 
the  ben.  volence  of  that  law,  the  privilege  ought  not  to  be 


363 

refused  to  any  where  it  is  not  likely  to  be  abused  or  at- 
tended with  national  danger.  But  when  a  stranger  is  ad- 
mitted into  any  nation,  reason  and  humanity  require  that 
he  should  be  considered  by  the  same  act  as  taken  under 
its  protection.  His  property,  as  well  as  his  personal 
safety,  is  deemed  to  be  under  the  guardianship  of  the 
power  and  justice  of  its  laws.  He  still  retains  the  right 
to  dispose  of  it  as  he  pleases  ;  or,  if  he  dies  within  the  ju- 
risdiction of  that  foreign  state,  a  benevolent  justice  seems 
to  require  that  it  should  be  preserved  under  the  safeguard 
of  the  public  authority,  and  restored  to  the  requisition  of 
the  government  of  his  native  country.* 

It  is  an  obvious  principle  in  this  code,  in  the  next  place, 
that,  if  a  stranger  in  a  foreign  country  enjoys  the  pro- 
tection, he  is  also  subject  to  the  control,  of  its  laws. 
During  his  residence,  it  is  his  duty  to  demean  himself  as 
a  good  and  peaceable  citizen,  and  orderly  subject.  And 
if,  in  any  thing,  he  offends  against  this  rule,  he  shall  be 
subjected  to  the  penalties  of  the  law,  as  if  he  were  a  native. 
If  there  be  strong  and  well  supported  suspicions  of  his 
abusing  the  privilege  of  a  stranger  to  any  hostile,  or  un- 
friendly purpose,  such  as  attempting  to  excite  disaffection 

*  For  a  long  time  these  rights  were  little  understood  in  Eu- 
rope, and  were  hardly  known  in  the  rest  of  the  world.  Even  till 
very  late  years  the  droit  d'aubain,  as  it  was  called,  remained  a 
stain  on  the  humanity  of  France 


366 

to  the  existing  government,  or  taking  plans  or  charts  of 
their  sea  coasts,  or  their  strong  places,  for  the  use  of  an 
enemy,  he  may,  without  violating  the  rights  of  hospitality, 
be  required  immediately  to  depart  from  the  country,  or, 
under  a  safe  conduct,  be  sent  beyond  its  limits. 

It  is  worthy  of  particular  observation,  with  regard  to 
the  privileges  of  intercourse  for  the  purposes  of  com- 
merce, that  it  is,  generally,  the  interest  of  all  states  to 
render  the  ingress  and  egress  of  fair  traders  as  easy,  and 
secure  as  possible.  Yet  nations  have  frequently,  from 
some  idea,  whether  true,  or  false,  of  the  advantage  of 
encouraging  one  species  of  commerce,  or  the  com- 
merce of  one  nation,  in  preference  to  another,  imposed 
narrow  and  exclusive  regulations  on  their  commer- 
cial intercourse.  When  this  is  the  case,  other  na- 
tions must  submit  to  the  restrictions,  however  absurd, 
which  each  thinks  fit  to  prescribe  for  itself;  if  they  can- 
not, by  some  conventional  agreement,  procure  a  more  fa- 
vorable state  of  things.  Hence  those  numerous  commercial 
treaties  which  form  so  large  a  portion  of  the  positive,  or 
diplomatic  law  of  nations,  in  the  modern  states  and  king- 
doms of  Europe. 

OF    AMBASSADORS,    OR    NATIONAL  REPRESENTATIVES. 

The  fourth  class  of  laws  relative  to  a  state  of  peace, 
respects  the  rights  of  embassy,  or  national  representation. 
From  the  first  ages  of  civilized  society  the  convenience  of 


367 

nations  has  given  rise  to  a  class  of  men  residing  near 
foreign  courts  as  their  representatives ;  through  whom 
such  communications  might  he  made,  or  propositions  re- 
ceived as  go  to  affect  the  interest  of  those  by  whom  they 
are  sent. 

On  this  subject  the  following  principles  are  universally 
admitted.  The  ambassador  of  an  independent  nation  pos- 
sesses within  that  country  to  which  he  has  been  received, 
all  the  independent  rights  of  the  nation  which  he  repre- 
sents.— His  person,  of  consequence,  is  sacred,  and  invio- 
lable— He  is  not  amenable  to  the  civil,  or  criminal  juris- 
diction of  the  state  within  which  he  resides. — Yet,  if 
he  should  so  far  forget  the  rights  of  the  nation  as  to  in- 
sult its  government, — to  intrigue  with  its  parties, — to 
contravene  its  laws, — or  to  attempt  to  foment  sedition  or 
insurrection,  the  government  whose  displeasure  he  has 
incurred  may  apply  to  that  whose  representative  he  is, 
with  a  request  that  he  may  be  recalled  :  and  it  shall 
be  the  duty  of  such  state,  if  it  be  disposed  to  preserve  the 
relations  of  amity  and  friendship  subsisting  between  them, 
to  reeal  him. — There  are  certain  cases  in  which  the  ex- 
igency of  affairs  may  require  that  he  be  immediately  or- 
dered to  quit  the  territories  which  he  has  abused.  The 
public  safety  may  even  demand  that  his  person  be  confin- 
ed. The  government,  however,  which  proceeds  to  such 
severe  measures,  must  rely  on  the  justice  of  the  state 


368 

which  sends  him,  to  approve  the  aet  when  the  cause  im- 
pelling them  to  it  is  understood.  Otherwise  the  sending 
away  an  ambassador,  confining  his  person,  or  refusing 
to  receive  him  in  his  public  character,  is  construed  to  be 
a  proof  of  hostile  intentions,  and  is  generally  considered 
as  a  sufficient  occasion  of  proclaiming  immediate  war. 

Any  nation  possesses  a  right,  on  the  ground  of  nation- 
al courtesy,  to  send  its  representative  to  reside  with 
another  nation  ;  nor  will  the  principles  of  amity  and  good 
neighborhood,  permit  the  latter  to  refuse  admitting  him 
except  on  such  reasons  as  have  been  already  explained. 

When  a  nation  has  been  divided  into  great  and  power- 
ful factions  by  civil  dissention,  it  may  be  doubtful  in 
which  party  the  power  and  authority  of  the  state  is  vested. 
In  such  a  case,  a  friendly  power  may  justly  refuse  to  re- 
ceive an  ambassador  from  either  party  till  the  interior 
disorders  of  the  state  be  composed.  Or  if  it  consents  to 
receive  any,  prudence  seems  to  require  that  it  should  be 
from  that  party  which  is  in  actual  possession  of  the  gov- 
ernment. 

Thus  have  I  proposed  to  you  a  very  brief  sketch  of  the 
principal  rules  which  respect  nations  maintaining  towards 
each  other  the  relations  of  peace.  In  the  following  lec- 
ture I  shall,  with  equal  brevity,  endeavor  to  lay  down  the 
most  essential  principles  that  should  govern  their  conduct 
in  the  respective  states  of  war,  and  of  neutrality. 


>69 


LECTURE  XXXI. 


OF  LAWS  RELATIVE  TO  A  STATE  OF  WAR,  AND  OF  NEU- 
TRALITY. 

The  just  causes  of  war. — Of  the  time  and  manner  of  com- 
mencing war. — On  the  means  of  carrying  on  war. — Dis- 
turbing the  peaceable  husbandman  in  the  labors  of  the 
field,  privateering  at  sea,  confiscating  or  sequestrating 
debts  or  property  in  the  public  funds,  seizing  vessels  in 
the  harbors  at  the  commencement  of  a  xvar,  iniquitous, 
and  impolitic. — On  the  method  of  terminating  war. — Of 
laivs  relative  to  a  state  of  neutrality. — Of  the  commerce 
of  neutral  nations. — Of  contraband  goods. — Of  the 
goods  of  an  enemy  nation  on  board  of  neutral  vessels. 
— Of  the  right  of  search. — Of  the  principle  that  free 
ships  should  make  free  goods. — Of  the  inviolability  of 
neutral  territory. — Two  questions,  1.  Have  vessels  of 
war  aright  to  bring  their  prizes  into  neutral  ports  and 
there  expose  them  to  sale  ?   2.  Have  neutral  nations  a 
right  to  enter  into  a  commerce  with  a  belligerent,  ichicli 
they  did  not  enjoy  in  time  of  peace  ? 

NATIONS  are  often  necessarily  engaged  in  wars, 
through  the  pride,  jealousy,  or  ambition  of  foreign  pow- 
ers.  And,  not  unfrequently,  they  mistake  their  own  pas- 
vox,  ii.  3  a 


370 

sions,  and  imaginary  interests  for  just  and  reasonable 
causes  of  war.  The  organization,  therefore,  and  direction 
of  the  national  force,  by  which  they  may  successfully  re- 
pel injury,  or  retaliate  aggression,  is  an  important  object 
of  political  philosophy. 

Nations,  even  in  managing  their  wars  should  remember 
that  they  are  men.  In  the  causes  of  their  wars,  therefore, 
they  should  be  just ;  and  in  the  conduct  of  them  they 
should  exercise  all  the  humanity  which  is  consistent 
with  the  nature  of  the  contest,  and  the  end  to  be  attained 
by  it.  The  civilization  and  refinement  of  modern  times 
lias  tended  to  extinguish  much  of  that  ferocity  and 
cruelty  in  the  operations  of  war  which  were  the  disgrace 
of  human  nature  in  the  barbarous  ages. 

On  this  subject,  I  shall  propose  to  you  a  few  principles 
on  the  just  causes  of  war ; — on  the  time  and  manner  of 
commencing  it  ;— on  the  means  of  carrying  it  on; — .and 
on  the  method  of  terminating  it. 

OF  THE  CAUSES  OF  WAE. 

The  just  causes  of  war  may  be  stated,  in  general,  to  be 
the  violation  of  any  of  the  perfect  rights  of  nations. 

Inasmuch  as  all  the  citizens,  or  subjects  of  a  state  are 
considered  to  be  under  the  protection  of  its  power,  and 
its  laws,  any  unjust  aggressions  made  on  the  persons  or 
property  of  these,  by  the  authority  of  another  state,  or 


371 

made  by  the  subjects  of  another  state,  and  refused  to  be 
redressed  after  proper  application  made  for  the  purpose 
by  the  government  of  that  nation  whose  citizens  have 
been  injured,  may  be  deemed  a  reasonable  cause  of  war. 

If  a  nation  is  found  arming,  and  putting  itself  in  a 
threatening  posture  of  offence,  and  refuses  to  desist,  or  to 
give  an  amicable  explanation  of  its  conduct  to  another 
which  has  probable  grounds  for  apprehending  some  medi- 
tated aggression  on  its  safety,  or  its  rights,  this  state  of 
hostile  preparation  has  been  held  by  writers  on  the  law  of 
nations  to  be  a  justifiable  cause  of  war. 

OX  THE  TIME  AXD  MANXER  OF  COMMEXdXG  WAR. 

"War,  which  is  accompanied  by  so  many  calamities  to 
mankind,  ought  seldom  to  be  undertaken  till  every  pacific 
measure  has  been  tried  in  vain  to  obtain  redress  of  inju- 
ries actually  received,  or  satisfaction  with  regard  to  those 
dangers  which  are  justly  apprehended.  One  exception, 
there  is  to  this  principle.  When  sufficient  reason  has 
been  given  to  believe  that  all  applieation  will  be  fruitless 
to  a  predetermined  enemy  ;  and  delay  will  only  be  yield- 
ing him  greater  advantages  to  commence  an  attack  with 
success,  in  such  case,  the  injured  party  may  strike  his 
blow  whenever  he  finds  it  most  convenient  for  himself. 

Formerly  it  was  customary  to  precede  hostilities  by  a 
public  declaration  of  war,  and  some  nations  have  aceom- 


panied  this  transaction  witli  ceremonies  of  great  formal- 
if  v.*  This  practice  has  been  growing  into  disuse  among 
the  nations  of  Europe.  And  it  is  now  only  necessary  that 
each  state  take  the  most  early  means  of  apprizing  its  own 
citizens  of  the  state  of  hostility  in  which  they  are  placed. 
The  people  of  the  United  States  will  always  be  apprized 
of  it  by  the  act  which  engages  the  nation  in  war  :  for  it 
can  be  undertaken  only  in  consequence  of  a  solemn  decree 
of  Congress.  By  this  wise  provision  of  our  constitution, 
the  people  are  defended  in  the  best  possible  manner,  from 
the  risk  of  unnecessary  wars,  which  usually  spring, 
either  from  the  mistaken  pride  and  ambition  of  princes,  or 
the  inconsiderate  passions  of  a  heated  populace. 

ON  THE  MEANS  OF  CARRYING  ON  WAR. 

The  means  of  justifiable  hostility  and  offence,  are  all 
weapons  of  injury,  and  methods  of  compulsion  and  force, 
which  can  tend  most  effectually  to  weaken  and  subdue  an 
enemy,  and  to  bring  him,  at  length,  to  reasonable  terms 
of  pacification.  Reparation  of  injuries,  and  restoration  of 
peace  upon  equitable  terms  are  the  legitimate  objects  of 
every  just  and  reasonable  war  ;  and  no  measures  of  vio- 
lence will  be  permitted  by  a  magnanimous  people  which 

*  The  Romans  sent  a  herald  to  the  enemy's  borders  to  de- 
mand redress  and,  if  they  did  not  obtain  the  satisfaction  they 
expected  within  thirty  days,  the  herald  returned,  and  hurled  a 
spear  into  their  territory  in  token  of  defiance,  or  as  a  denuncia- 
tion of  hostility. 


373 

do  not  directly  contribute  to  these  ends.  Every  mean  of  in- 
spiring terror,  or  inflicting  death  in  the  ardor  of  battle  is 
allowable  in  an  enemy.  But  all  unnecessary  acts  of  cru- 
elty, such  as  the  use  of  poisoned  weapons,  poisoning 
springs  or  provisions,  refusing  quarters  to  a  vanquished 
enemy,  or,  after  laying  down  their  arms,  reducing  them 
to  slavery,  compelling  them  to  fight  against  their  country, 
or  oppressing  them  by  a  rigorous  confinement,  are  as  ab- 
horrent from  true  magnanimity,  as  from  true  humanity. 

Individuals  ought  not  to  be  considered  as  culpable  in 
any  war.  They  are  entitled,  therefore,  when  in  our  power, 
to  all  possible  lenity,  and  to  the  exercise  of  all  the  ordi- 
nary sympathies  of  humanity.  On  the  same  principles, 
all  devastations  committed  on  the  property  of  unarmed 
husbandmen,  peaceably  pursuing  the  labors  of  the  field, 
are  unwarrantable.  This  is  making  war  on  human  nature, 
not  on  an  enemy.  These  acts  of  wanton  devastation  are 
not  less  unwise,  than  unjust ;  by  destroying  the  means  of 
subsistence  which,  in  the  end,  may  become  necessary  to 
the  destroyers  themselves.  One  exception  may  be  ima- 
gined to  this  rule.  AVhen  a  general  has  it  in  his  power, 
by  destroying  the  provisions  of  a  country,  to  impede  the 
dangerous  course  of  a  victorious  enemy.  Such  an  action, 
however,  can  be  justified  only  on  the  principle  of  self- 
preservation. 


S74 

Attacking  and  plundering,  by  private  vessels  of  war, 
the  peaceable  merchants  of  an  enemy  nation  pursuing 
their  customary  and  innocent  traffic,  ought  to  be  con- 
demned, on  the  same  grounds.  Acts  of  this  kind  tend  to 
involve  individuals  in  distress  and  ruin,  but  contribute 
little  or  nothing  to  impair  the  public  force  of  the  enemy, 
or  to  determine  the  issue  of  the  war.  Some  attempts  have, 
within  a  few  years,  been  made  by  different  powers  to  limit, 
or  put  an  end  to  this  odious  and  iniquitous  practice.  But 
those  generous  nations  have  uot  yet  been  able  to  accom- 
plish their  humane  and  equitable  purposes.  And  priva- 
teering, which,  in  its  principle,  is  nothing  less  than  the 
most  cruel  and  unjust  species  of  plunder  and  robbery, 
still  remains,  under  a  few  limitations  as  to  the  precau- 
tions and  forms  necessary  iu  commissioning  the  vessels, 
and  condemning  the  prizes,  the  reproach  of  the  policy, 
and  humanity  of  modern  times. 

A\\  acts  by  which  a  state  endeavors  to  revenge  on  inno- 
cent, and  unoffending  individuals  the  injustice  of  their 
government,  is  equally  iniquitous  and  impolitic.  There- 
fore, confiscating,  or  sequestrating  the  property  which 
foreigners  may  hold  in  its  public  funds,  or  in  the  hands 
of  private  debtors,  or  seizing  on  the  vessels  of  their  mer- 
chants which  may  be  in  its  harbors  at  the  commencement 
of  a  war,  instead' of  being  a  justifiable  mean  of  offence,  is 
a  shameful  violation  of  national  faith,  and  honor.   These 


375 

funds  were  deposited,  these  debts  were  contracted,  and 
these  vessels  entered  its  harbors  under  the  protection  of 
its  laws  ,•  and  surely  those  laws  cannot,  either  with  good 
faith,  or  in  good  policy,  be  made  a  decoy  for  innocent 
foreigners  who  have  honored  it  by  confiding  in  its  integ- 
rity and  justice. 

The  nations  of  Europe,  by  the  progressive  refinement 
of  their  manners,  are  gradually  mitigating  the  horrors  of 
war.  And  some  late  treaties,  particularly  that  between 
Prussia,  and  the  United  States  of  America,  have  intro- 
duced, on  this  subject,  some  of  the  most  amiable  and  be- 
nevolent doctrines  of  the  law  of  nature  and  nations.  All 
the  principles  which  have  just  been  mentioned  have  been 
recognized  in  that  treaty.  And  we  have  reason  to  hope 
that  such  generous  efforts  in  favor  of  humanity,  made 
under  such  high  authority,  will,  in  a  course  of  time,  tend 
to  establish  these  benevolent  principles  on  an  immovable 
foundation. 

ON    THE    METHOD    OF   TERMINATING   WAE. 

When  empires  are  so  extensive,  as  in  the  eastern  quar- 
ter of  the  globe,  that  the  ideas  of  a  balance  of  power 
among  its  several  nations  cannot  easily  be  framed,  or 
realized,  force  alone  generally  impels,  or  limits  the  ac- 
tions of  despots.  If  war  is  terminated  by  conquest,  which 
frequently  happens,  the  victor  has  tjhen  an  option,  accord- 


ing  to  the  maxims  which  usually  govern  such  states,  of 
four  possible  ways  of  using  his  power  ;  the  first  to  exter- 
minate the  inhabitants  ;  the  second  to  reduce  them  to 
slavery.  In  both  these  cases  the  vacant  lands  are  usually 
replenished  by  new  subjects  drawn  from  other  parts  of 
his  dominions.  In  the  third  place,  he  may  spare  the 
people,  only  changing  entirely  their  laws,  institutions, 
and  rulers,  and  subjecting  them  immediately  to  his  own 
authority.  Or,  finally,  he  may  suffer  them  to  enjoy  their 
laws,  and  their  ancient  customs j  but,  annexing  them  to 
the  body  of  his  empire,  may  impose  upon  them  a  perpetual 
tribute.  The  two  former  of  these  methods  nothing  can 
justify  but  power.  The  last  is  the  most  equitable,  and, 
even  for  a  despot,  the  part  of  the  wisest  policy. 

But,  where  reason  and  policy  preside  at  the  termina- 
tion of  a  war  between  independent  nations,  hostilities 
should  be  closed  by  treaty.  And  on  this  subject,  the  fol- 
lowing principles  ought  sacredly  to  be  respected.  In 
order  to  facilitate  propositions  for  peace,  flags  should  be 
free,  and  the  persons  of  those  who  bear  them,  inviolable. 
— All  armistices  ought  to  be  proposed,  and  observed  with 
perfect  good  faith. — If  the  injured  nation,  should  prove 
superior  in  the  war,  she  can  only  reasonably  demand  re- 
paration for  the  injuries  she  has  suffered,  and  indemnifi- 
cation, perhaps,  for  the  expenses  she  has  iueurred  in  pur- 
suing redress.  ^Yhere  a  nation  has  discovered  any  peculiar 


377 

restlessness  of  disposition,  and  manifests  an  inclination, 
as  well  as  possesses  the  power  to  disturb  her  neighbors, 
extraordinary  securities  may  justly  be  demanded  of  her, 
for  her  future  pacific  intentions.  On  this  principle  cau- 
tionary fortresses  within  her  territory  may  sometimes  be 
required  to  be  delivered  up,  to  be  garrisoned  by  the 
troops  of  the  injured  nation,  or  of  some  friendly  and 
allied  power,  as  a  more  effectual  guard  against  future 
and  sudden  infractions  of  the  present  peace. 

To  the  disgrace  of  human  nature,  reasonable  terms  of 
accommodation  are  hardly  to  be  expected,  except  where 
nations  are  so  nearly  equal  in  strength,  either  by  them- 
selves, or  their  alliances,  that  equitable  compromise  is 
preferable  to  prolonged  and  fruitless  contest;  or  where, 
on  the  other  hand,  they  are  surrounded  by  nations  who 
have  formed  to  themselves  such  a  system,  and  balance 
of  poivcr,  that  they  find  a  common  interest  in  not  suffer- 
ing any  one  state  to  acquire  too  great  a  superiority  over 
another,  and  too  great  a  preponderance  in  the  general 
scale. 

We  are  prone  to  flatter  the  age  in  which  we  live  on  its 
superior  advances  in  wisdom  and  virtue.  But  the  im- 
provements which  have  recently  been  introduced  into  the 
law  of  nations  in  Europe,  and  the  reason  which  has  pre- 
sided in  the  treaties  of  her  different  powers,  for  more 

vol.  ii.  3  b 


378 

than  a  century  past,  lias  been  the  result  of  their  equality 
of  force,  and  of  the  peculiar  relations  which  have  sprung 
out  of  their  artificial  adjustments  of  the  balance  of 
power,  as  much  as  of  their  progress  either  in  science,  or 
humanity.* 

OF  LAWS  RELATIVE  TO  A  STATE  OF  NEUTRALITY. 

The  rights  and  duties  of  neutral  states  form  an  im- 
portant branch  of  the  law  of  nations.  It  is  particularly 
interesting  to  the  United  States  of  America  while  they 
hold  their  present  relations  to  the  other  nations  of  the 
world.  And  it  were  much  to  be  desired  that  we  might 
always  have  enlightened  statesmen  wise  enough  to  un- 
derstand, and  firm  and  prudent  enough  to  maintain  them. 

The  first  duty  of  a  neutral  power,  in  any  existing  war, 
is  to  observe  a  perfect  impartiality  of  conduct  towards 
the  nations  which  may  be  embarked  in  it. 

This  principle  does  not  preclude  a  neutral  from  fulfill- 
ing, with  good  faith,  the  stipulations  of  pre-existing 
treaties,  binding  her  to  any  definite  supplies  to  be  fur- 
nished to  either  of  the  parties  at  war.  And  complying 
with  such  engagements  ought  not  to  interrupt  the  amity 

*  Of  this  fact  Bonaparte  has  given  the  world  the  most  strik- 
ing evidence  since  he  has  been  able  to  break  the  European 
balance  ol  power,  and  acquire  for  himself  such  a  decided  pre- 
ponderance in  the  scale  of  empire. 


379 

subsisting  between  the  neutral,  and  the  opposite  belliger- 
ent power;*  unless  the  stipulated  supplies  go  to  such. 
extent  as,  by  reasonable  construction,  to  destroy  her 
right  to  the  privileges  of  neutrality,  and  render  her,  in 
fact,  a  party  in  the  war. 

Van  FJynkershoek  and  Yattel  have  both  proposed  a 
limitation  to  this  principle,  maintaining  that  if  a  Avar  be 
manifestly  unjust  on  the  part  of  a  nation  to  which  cer- 
tain succors  have  been  stipulated,  the  stipulation  is,  by 
that  circumstance,  rendered  void.  In  all  other  cases  they 
contend  for  its  obligation This  decision  of  these  emi- 
nent writers  seenjs  to  lay  a  foundation  for  a  very  lax 
national  morality.  If  it  is  lawful  for  a  nation  to  judge  of 
the  justice  of  the  cause  of  another,  with  whom  she  has 
federal  engagements,  before  she  is  obliged  to  fulfil  them, 
it  were  as  well  they  had  not  been  contracted.  Where  a 
government  has  an  interest  to  decline  complying  with  its 
engagements,  it  is  not  difficult  to  find  reasons  to  justify 
its  refusal.    A  wise  people  will  always  be  cautious  with 

*  A  late  example  of  this  doctrine  happened  in  the  war  be- 
tween Russia  and  Sweden.  [A.  D.  1788]  Denmark  was  bound 
by  previous  treaty  to  furnish  to  Russia  a  certain  number  of  ships 
and  troops.  This  stipulation  she  accordingly  fu, filled  without 
breaking  her  friendship  with  Sweden.  Yet  such  treaties  are 
generally  dangerous  in  the  issue,  and  ought  rarely,  if  ever,  to 
be  entered  into,  except  between  nations  who  find  it  necessary 
for  their  common  safety  to  form  such  reciprocal  leagues. 


380 

regard  to  the  obligations  which  they  assume,  and  leav« 
themselves  at  liberty,  in  the  very  terms  of  them,  not  to 
aid  injustice.  It  is  difficult  for  one  people  to  estimate, 
■with  certainty,  the  justice  of  a  -war  in  which  another  may 
be  involved.  And  a  neutral  nation  has  no  right  to  pro- 
nounce upon  the  subject,  or  to  discover  by  its  conduct 
towards  the  parties,  that  it  condemns  the  one,  or  justifies 
the  other. 

OF  THE  COMMERCE  OF  NEUTRAL  NATIONS. 

The  citizens  of  a  neutral  state  have  a  right  to  pursue  a 
free  aud  unmolested  commerce  with  all  countries,  whether 
belligerent,  or  others.  Nor  is  there  any  exception  to  this 
right,  except  with  regard  to  military  and  naval  stores  in- 
tended for  an  enemy,  or  provisions  going  to  a  place  that 
is  actually  besieged  or  blockaded.  These  prohibited  arti- 
cles are  usually  enumerated  in  treaties  under  the  title  of 
contraband. 

The  right  of  seizing,  and  confiscating  contraband  mer- 
chandize is  connected  with  another  right  exercised  by  the 
ships  of  war  of  the  belligerents,  of  stopping  neutral  ves- 
sels in  their  voyage,  and  detaining  them  for  search.  But 
because  this  right,  when  most  prudently  used,  is  necessa- 
rily vexatious  and  often  highly  injurious  to  the  fair  trader, 
it  must  be  exercised  at  the  peril  of  those  who  search  ; 
that  is,  if  no  contraband  goods  are  found,  those  who  have 


381 

presumed  to  interrupt  a  voyage,  are  made  liable  for  all 
damages  committed  in  the  exercise  of  this  right,  and  for 
all  losses  that  shall  result  from  the  detention  of  the  mer- 
chant. 

Kot  only  the  goods  denominated  contraband,  but  all 
property  of  the  enemy  discovered  on  board  of  a  neutral 
Yessel?  has  hitherto,  by  the  law  of  nations,  been  made 
liable  to  seizure.  But  this  principle  has  often  become  the 
source  of  so  many  abuses,  and  is  always  attended  with  so 
much  vexation  to  the  fair  trader,  that  some  nations  have, 
with  great  reason,  attempted,  in  their  late  treaties,  to 
correct  the  evil,  by  making  the  vessels  of  the  contracting 
powers,  when  one  may  happen  to  be  in  the  relation  of 
neutrality,  at  the  same  time  that  the  other  is  engaged  in 
war,  a  sufficient  protection  to  the  freight  universally.  In 
whatever  countries  these  treaties  exist  they  form  so  many 
positive  laws,  in  amendment  of  what  has  hitherto  been 
acknowledged  as  the  law  of  nature  and  nations  on  the 
subject.  And  happy  would  it  be  for  the  interests  of  the 
commercial  world,  and  not  unfavorable  to  the  objects  of 
legitimate  warfare,  if  the  principle  were  adopted  by  all 
nations  that  neutral  bottoms  shall  be  deemed  a  sufficient 
protection  to  the  property  which  they  convey.* 

*  The  celebrated  marine  ordonnances  of  France  issued  1681, 
amended  in  1694  and  1704,  and  perfected  in  1744,  are  calculated 
to  ascertain  by  the  best  and  clearest  rules  that  ever  were  pub- 
lished, the  genuineness  of  neutral  vessels,  and  their  cargoes. 


382 

A  principle  immediately  connected  with  the  preceding, 
in  the  law  of  nations,  as  it  is  now  generally  understood, 
is  that  the  property  of  neutrals  shall  he  free  in  the  vessels 
of  an  enemy.  For  they  have  a  right  to  make  use  of  the 
assistance  of  their  friends  without  fearing  that  it  shall 
operate  to  their  disadvantage. 

Another  acknowledged  principle  in  this  code  is  that 
neutral  powers  have  the  right,  and  are  under  obligation, 
to  preserve  their  territories  inviolate  not  only  from  the 
encroachments  of  those  who  are  actually  engaged  in  war, 
but  from  being  used  for  any  purpose  of  convenience  against 
their  enemies.  And  it  is  correspondent^  the  duty  of  all 
belligerents  to  respect  the  limits  of  neutral  jurisdiction. 
Within  these  limits  an  enemy  cannot  lawfully  be  attacked, 
nor  a  capture  lawfully  be  made.  If  any  such  act  of  hos- 
tility is  committed,  it  is  incumbent  on  the  neutral  power 
to  demand  satisfaction  from  the  aggressor,  and  to  procure 
redress  for  those  who  have  been  injured  while  under  its 
protection,  or  within  its  jurisdiction. 

Some  jurists  have  made  one  exception  to  this  principle. 
If  the  vessel  of  an  enemy  has  been  attacked  in  the  open 
sea,  and  flees  for  shelter  within  the  jurisdiction  of  a  neu- 
tral power,  they  maintain  that  the  victor,  in  the  ardor  of 
contest,  may  pursue  her  within  neutral  limits,  and  capture 
her,  provided  there  has  been  no  intermission  of  the  battle, 


383 

or  pursuit ;  or,  as  Van  Bynkcrshoek  expresses  himself, 
dunifervet  opiis.  This  is  an  exception  which  will  be  found 
very  dangerous  in  practice.  And  the  United  States  have 
judged  better,  who  have  given  the  cognizance  of  all  cap- 
tures made  within  their  jurisdiction,  to  the  district  courts. 
But  no  vessel  should  be  permitted  to  take  refuge  in  a 
neutral  harbor  with  the  view  of  making  preparations 
there  to  renew  the  contest.  And,  generally,  all  military 
equipments,  or  naval  armaments  made  by  any  belligerent 
powers  within  the  jurisdiction  of  neutrals,  are  contrary 
to  the  rights  of  neutrality.  If  a  vessel  of  war,  having 
suffered  damages  at  sea,  has  been  forced,  by  stress  of 
weather,  into  the  harbor  of  a  neutral  nation,  she  may  be 
permitted  to  repair  those  damages  ;  but  must  depart 
without  making  any  other  equipment. 

A  neutral  nation  may  rightfully  prohibit  all  vessels  of 
war  entering  her  harbors,  if  she  conceives  the  general 
interests  of  her  peace  and  safety  require  it,  except  when, 
compelled  by  the  dangers  of  the  sea,  they  find  themselves 
obliged  to  take  refuge  within  them  for  a  short,  and  limited 
time.  If  no  such  prohibition  exists,  vessels  of  force,  as 
well  as  merchant  ships  belonging  to  different  powers  at 
w ar  may,  consistently  with  the  law  of  nations,  use  the 
harbors  of  a  neutral  state  as  an  assylum  in  cases  of  immi- 
nent danger,  or  as  convenient  stages  of  refreshment  in 
long  and  hazardous  voyages.   But,  in  no  case  shall  thev 


38* 

be  permitted  to  use  this  right  merely  for  the  purpose  of 
lying  in  wait  for  their  enemy,  or  gaining  a  favorable  op- 
portunity to  attack  him  with  advantage. 

In  order  the  more  effectually  to  preserve  an  impartial 
neutrality,  and  to  save  the  rights  of  assylum  and  hospital- 
ity from  being  abused  to  subserve  any  hostile  purpose, 
the  United  States  have  wisely  ordained  that,  if  any  armed 
vessel  belonging  to  a  belligerent  nation,  depart  from  any 
harbor  within  the  limits  of  these  States,  no  armed  vessel 
belonging  to  a  hostile  power,  being  within  the  same  har- 
bor at  the  time,  shall  depart  until  twenty-four  hours  after 
the  former :  otherwise  she  shall  be  deemed  to  have  vio- 
lated the  law  of  nations. 

Two  questions  remain  to  be  decided  on  this  subject ; 
the  first  is,  have  the  citizens  or  subjects  of  belligerent 
states  a  right  to  bring  their  prizes  into  neutral  ports,  and 
expose  them  there  to  sale  ? — And  the  second  ,•  has  a  neu- 
tral nation  a  right  to  enter  into  a  commerce  with  one  of 
the  belligerents,  in  time  of  war,  to  which  she  had  not  been 
admitted  in  time  of  peace  ? 

To  the  former  of  these  questions,  I  answer  that  a  neu- 
tral ought  equally  to  grant  or  refuse  the  privilege  to  all 
the  powers  at  war ;  unless  she  is  already  bound  to  some 
certain  rule  of  conduct  on  the  subject  in  pre-existing 
treaties.   If  she  has  not  antecedently  laid  herself  under 


S8S 

any  obligation,  the  safest  rule  is  to  refuse  the  privilege  to 
all.  Mr  Valin,  in  his  commentaire  sur  Vordonnance  de  la 
marine  du  1681,  tome  2.  2752 — 277,  asserts  iu  strong  and 
positive  terms,  that  an  impartial  neutrality  forbids  not 
only  the  selling  of  prizes  in  a  neutral  port,  but  even  the 
introduction  of  them,  except  it  be  through  stress  of 
weather,  and  as  long  as  that  stress  continues ;  or  for 
some  convenience  in  navigation,  in  which  case,  they 
ought  not  to  be  permitted  to  remain  longer  than  twenty- 
four  hours;  that  being  a  sufficient  time  to  fulfil  all  the 
necessary  purposes  of  mere  convenience.  M  As  neutrali- 
ty, says  he,  towards  two  nations  at  war  does  not  permit 
us  to  favor  ojie,  to  the  prejudice  of  the  other,  in  order  to 
conciliate  this  object  with  the  right  of  assylum,  nations 
have  tacitly  agreed,  ami  custom  has  rendered  it  a  common 
right,  that  an  assylum  should  be  given  to  foreign  vessels 
of  war,  with  their  prizes — that  is  to  say,  if  they  have 
entered  a  port,  being  forced  by  a  tempest,  and  as  long  as 
the  tempestuous  weather  will  not  permit  them  again  to 
put  out  to  sea; — but  only  for  twenty-four  hours,  if  they 
have  entered  for  any  other  cause. — Excepting  the  case  of 
a  tempest,  if  vessels  are  in  a  condition  to  sail,  the  neutral 
power  is  under  an  obligation  to  cause  them  to  depart 
within  twenty-four  hours ;  otherwise  it  would  be  a  viola- 
tion of  its  neutrality.  These  observations,  he  adds,  re- 
gard only  vessels  of  war,  with  their  prizes,  and  not  those 
vox.  ii.  3  c 


3U 

vessels  which,  without  prizes,  take  refuge  in  a  neutral 
harbor  from  the  pursuit  of  an  enemy,  or  enter  it  for  any 
other  cause.'* 

To  the  second  question  I  reply,  that  independent  na- 
tions always  possess  the  right  of  making  commercial 
arrangements  with  one  another,  whether  in  time  of  peace, 
or  of  war ;  these  arrangements,  however,  being  subject 
to  those  just  restrictions  which  have  been  already  pointed 
out,  and  admitted  to  take  place  in  neutral  trade,  in  time 
of  war.  The  English  nation,  indeed,  in  the  confidence  of 
their  great  maritime  power,  have  denied  this  right,  under 
the  pretence,  that  it  is  covering  the  property  of  an  enemy 
under  the  privileges  of  a  neutral  commerce.* 

Finally,   as    fho    spirit    nf*  onmrnprpo    tends   in    a  great 

degree  to  mitigate  the  ferocity  of  war,  and  so  many  im- 
provements have,  by  this  means,  been  actually  introduced 
into  the  former  barbarous  code,  during  the  last  two 
centuries,  the  extension  of  neutral  privileges  will  be 
found  to  contribute  to  the  interest  and  happiness  of  man- 
kind.— They  merit  the  attentive  study,  and  the  firm 
support  of  every  American  statesman. 

*  Lord  Hawkesbury's  discourse  on  the  conduct  of  Great  Britair. 
in  respect  to  neutral  nations — page  18. 


END  OF  THE  SECOND  VOLUME. 


;.'  4& 


USZ 


iss* 


mm. 


